I. Is the Vaccine Freedom Act 2016 a constitutional exercise of Congress’s power?
Outcome: Yes.
Ratio: Article 1 Section 8 of the Constitution outlines the enumerated powers given to the federal government and included within these are the power to tax and spend (Clause 1) and the commerce power (Clause 3). Although the Vaccine Freedom Act 2016 (VFA 2016) is not an explicitly enumerated power, it is constitutional based upon the Necessary and Proper Clause which allows Congress “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”. First outlined in McCulloch v. Maryland (1819) to decide whether the federal government can establish a national bank. The ratio was dependent on the Doctrine of Implied Powers, that state if a logical nexus exists linking the law to a necessary and proper means of bringing about a legitimate legislative end, then that law is a constitutionally implied power.
In the above fact pattern, a logical nexus exists between VFA 2016 and Congress’s enumerated power to tax and spend where it “provides for the common Defense and general Welfare of the United States”. The duty to protect the general welfare includes each individual’s liberty to decide whether they wish to vaccinate and to protect their own health.
The VFA’s constitutionality is also supported by the power to regulate interstate commerce, given to the federal government in Gibbons v. Ogden (1824). With respect to “commerce”, the Court decided that commerce is more than mere traffic, but also includes the trade of commodities. Thus, a mandated vaccination plan would substantially impact both the national pharmaceutical industry and the overall economy. In mandated vaccination plans, individuals would either have to purchase a vaccination or purchase health insurance that would cover the vaccination’s cost. If vaccinations were instead publicly subsidized, an additional expense would incur upon state governments. According to the rules of economic supply and demand, by forcing a demand for vaccinations, pharmaceutical companies would have to increase their supply which would raise market prices. A similar decision was made in Heart of Atlanta Motel v. U.S. (1964) where the federal government decided that the Civil Rights Act of 1964 was constitutional and enough to regulate a private business whose location affected multiple states’ economies. Furthermore, since no state is required to install a mandatory vaccination plan, there would be variances between each state’s economy and pharmaceutical market. These are all factors that would affect commerce among several states and give Congress the power to enact VFA 2016.
II. Does Congress have appropriate preemptive power in enacting the Vaccine Freedom Act 2016?
Outcome: Yes.
Ratio: The VFA 2016 conflicts with state mandated vaccination plans by allowing people to opt-out. In Pennsylvania v. Nelson (1956), the Supreme Court established a precedent for the Doctrine of Preemption which allows a legitimate exercise of national authority to superseded any conflicting actions by a state legislature. It also established a test of 3 criteria which allows for preemption: (1) Congress has implemented similar acts and shows that it intends to occupy that field of legislation, (2) the national interest is so dominant that it is necessary to have a uniform legislation, (3) there is a danger of conflict between state and federal enforcement programs. The VFA 2016, meeting all three criteria, therefore has preemptive power.
Fact Pattern: The Brave Coyote Band of Penacook Indians (BCB) is comprised of 32 individuals residing on tribal lands on a reservation in Vermont. The Bureau of Indian Affairs recognizes the group and accords them apposite rights and privileges. Members of the Vermont state legislature are skeptical of BCB’s legitimacy as a freestanding tribe and would like to extinguish BCB’s tribal status. The legislature passed a law, the Native American Act 701(c)4-2 (2016), that allows state permitted hunting and fishing on BCB trust land.
I. Does the Brave Coyote Band of Penacook Indians (BCB) represent a sovereign entity?
Outcome: Yes.
Ratio: As long as the Bureau of Indian Affairs (BIA), a federal agency, recognizes the group and accords them rights and privileges, then the Brave Coyote Band of Penacook Indians (BCB) is recognized as a sovereign entity. According to the BIA, to be federally recognized a group must meet the following criteria:
– “Since 1900, it must comprise a distinct community and have existed as a community from historical times”
– It must have political influence over its members
– It must have membership criteria
– It must have a membership that consists of individuals who descend from a historical Indian tribe and who are not enrolled in any other tribe.
It is assumed the BCB Tribes meets the above criteria.
II. Does the Vermont state legislature have authority to extinguish a Native American tribe’s status?
Outcome: No.
Ratio: Article 1 Section 8 of the Constitution states that Congress has the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”, giving the legislative branch plenary powers over Indian Affairs. Thus, states have no authority over tribal governments, except under Congressional authority. Federally recognized tribes are not only not subordinate to state legislatures but cannot be dissolved by them either. In addition, Article 1 Section 10 of the Constitution states that “no state shall enter into any Treaty, Alliance, or Confederation”, which gives Congress the sole power to form alliances with Indian Tribes
This power was affirmed in Worcester v. Georgia (1832) where Samuel A. Worcester and others, were indicted for “residing within the limits of the Cherokee nation without a license”. They were found guilty under an 1830 act that prevented the “exercise of assumed and arbitrary power… under a pretext of authority from the Cherokee Indians”. Worcester argued that states had no authority to prosecute them because the act violated the commerce clause of the Constitution. This gave the right to “regulate Commerce… wth the Indian Tribes” to the federal government only. After being brought to the Supreme Court, Chief Justice John Marshall agreed with Worcester and dictated that the Georgia act was unconstitutional. Chief Justice Marshall wrote “The Cherokee nation… a distinct community occupying its own territory in which the laws of Georgia can have no force.” This case supports the Congressional power held in the Commerce Clause and therefore, Vermont’s legislature has no authority to extinguish a tribe’s status or regulate it otherwise.
III. Is the Native American Act 701(c)4-2 (2016) constitutional in allowing state permitted hunting on Native American land”
Outcome: No.
Ratio: First of all, according to Article 1 Section 8 of the Constitution, a state has no authority in regulating an Indian Tribe or any of activities that occur on their land, unless granted by the federal government. Secondly, in New Mexico v. Mescalero Apache Tribe (1983), the Supreme Court held that New Mexico’s state laws of on-reservation hunting and fishing by nonmembers of the Tribe were unconstitutional. Chief Justice Thurgood Marshall delivered the opinion noting that while New Mexico conceded that the tribe had authority to regulate hunting and fishing for tribal members on the reservation land, it was trying to claim a concurrent jurisdiction over non-tribal members. Marshall quoted Public Law 280, which specifically granted the power to regulate on-reservation hunting and fishing to tribes only. Chief Justice Marshall also noted that concurrent jurisdiction would nullify the Tribe’s plenary authority over its land, and interfere with the tribe’s notion of self-government. Therefore, this federal law preempted the state law, and it became a federal crime to hunt on tribal land.
Furthermore, in Menominee Tribe v. United States (1968), it was held that even if a tribe had lost its recognition as a sovereign entity, it would still keep its historical hunting and fishing rights. Therefore, even if the BCB Tribe were to fall into Vermont state jurisdiction, its tribal laws forbidding hunting and fishing by non-tribe members would still preempt Native American Act 701(c)4-2 (2016).
Fact Pattern: Furthermore, after extensive lobbying from the Spelunking Society of Vermont, the state also passed the Cave Protection Act 2015 (CPA 2015) which, inter alia, recognizes caves and associated cave wildlife on reservation lands as a significant natural resource of the State and provides for prosecution of any individual who does damage to caves in Vermont or harms or endangers any species that uses Vermont’s caves as a natural habitat. BCB holds sweat lodges in caves. In December 2015, Lightning Johnson and six other BCB individuals were convicted under CPA 2015 for conducting a sweat lodge in a cave where smoke from the sweat lodge was alleged to have caused the death of two dozen gray bats (Myotis grisescens) that use the caves as a place of repose.
I. Is the Cave Protection Act 2015 a constitutional exercise of the state legislature’s power?
Outcome: No.
Ratio: Worcester v. Georgia (1832) offers support for the constitutionality of the Cave Protection Act 2015 (CPA 2015) and notes that the state does not have this power. In the opinion, it is noted that the Cherokee nation — or any Indian tribe — is a distinct community and occupies a territory in which the laws of a state not only do not have force, but states cannot enter into treaties or alliances with the tribe. Chief Justice Marshall writes, “The whole intercourse between the United States and this nation is, by our Constitution and laws, vested in the Government of the United States”. Furthermore, because CPA 2015 explicitly refers to caves and cave wildlife on reservation lands, this would fall under the category of regulating tribal land that a state has no authority in.
However, because grey bats (Myotis grisescens) are recognized as an endangered species, the federal Endangered Species Act (ESA) can provide some regulation. The ESA protects both the endangered species and the ecosystem in which they depend on from further harm in order to prevent future extinction. While this act is administered by the U.S. Fish and Wildlife Service (FWS) and the Commerce Department’s National Marine Fisheries Service, two federal agencies which would possibly allow the federal government to seek regulatory powers under Article 1 Section 8, this, in fact, does not occur.
When creating the ESA, it was recognized by both the federal government and Indian tribes that it would not explicitly apply to species on tribal lands. This is mainly due to tribes ensuring their tribal sovereignty as a separate governmental power distinct from the United States government. According to the FWS, “both the Federal team and the tribal acknowledged that species conservation would be best achieved through government-to-government collaboration… rather than through litigation”.
However, a subtlety arises within the Commerce Clause that allows States to be given regulatory powers if the federal government explicitly deems so. In California v. Cabazon Band of Mission Indians (1987), the State of California wanted to apply state gambling laws to casinos on reservation lands. The Tribes argued that the imposition of state laws would interfere with their sovereignty, and it was ultimately held that the state had no authority to regulate gambling.
Although the decision did follow precedence, Justice Byron R. White delivered the opinion emphasizing that State laws require the consent of Congress in order to apply to reservation land. Justice White drew a distinction between criminal laws — which the federal government allows states to enforce on reservations — and a gambling regulation which was deemed as civil law. Therefore, unless granted explicit permission or the State’s interests in regulation outweighed federal and tribal interests, the State has no gambling enforcement power. Applicable to CPA 2015 and the ESA, the State would only be allowed to enforce the acts if given explicit permission from the federal government.
II. Did Lightning Johnson and the other BCB individuals violate CPA 2015 by conducting a sweat lodge in a cave that ultimately caused the death of two dozen gray bats?
Outcome: No
Ratio: Since the Vermont legislature had no authority to enact CPA 2015, then it did not apply to caves or cave wildlife on reservation land. Thus, Lighting Johnson and other BCB individual could not have violated an act that was unconstitutional.
Without explicit treaties or compromises created by the federal government with the BCB, only the tribe’s government had legislative and enforcement powers determining whether sweat lodges in caves were legal.
Fact Pattern: On September 1, 2016, the BCB tribal council passed a tribal resolution requiring all children born on the reservation to be vaccinated to prevent the spread of infectious diseases. Ransom Youngblood and two other BCB individuals brought a suit in federal court alleging that the VFA 2016 preempts the tribal resolution and that the tribal council is acting unlawfully.
I. Does the BCB tribal council have the constitutional authority to enact a legislation that requires all children born on the reservation to be vaccinated?
Outcome: Yes.
Ratio: Given the fact that the BCB tribe is a federally recognize tribe, it is a sovereign entity that has the right and authority to regulate activities on their lands independent from state governmental control. Except those that are explicitly relinquished to the federal government under their treaty, the tribe has full powers of self-government and can make laws as they wish, which includes regulating activity, taxing power, criminal laws, determining tribal citizenship, etc. Therefore, the tribal resolution requiring all children to be born on the reservation to be vaccinated is a constitutional use of this power.
Indian tribes’ sovereign power was first affirmed in Johnson v. M’Intosh (1823) by the Supreme Court. Thomas Johnson had purchased land from Piankeshaw Native American tribes in 1773, but William M’Intosh later obtained a land patent to the same land from the U.S. federal government. Johnson brought the suit to a district court in Illinois, arguing that his land title was superior to M’Intosh’s. The District Court dismissed the claim because the Piankeshaw tribe was not allowed to sell its land to non-tribe members.
This case was later appealed to the Supreme Court, who unanimously affirmed the dismissal. Justice Marshall delivered the opinion, outlining the “discovery doctrine”. The “discovery doctrine” describes the idea that European power gains “radical title” — sovereignty — to the land it discovered when it arrived at the United States. As a corollary, discovering power also allows a government to extinguish the “right of occupancy” to indigenous occupants, giving them sovereignty. Indigenous occupants established their aboriginal title by “actual, continuous, and exclusive use and occupancy for a ‘long time’”, known as the “aboriginal title”. An aboriginal title is not limited to any historical land uses, and cannot be extinguished, except to the federal government with approval by Congress.
II. Does VFA 2016 preempt the BCB’s tribal resolution requiring all children born on the reservation to be vaccinated?
Outcome: No.
Ratio: Federal preemption only applies between the federal government and states, and not any relations with sovereign tribes. Talton v. Mayes (1896) was a Supreme Court case where the Court decided that individual rights protections, which limited federal and state governments, did not apply to tribal government.
In Talton v. Mays (1896), Bob Talton was convicted by the tribal council for murdering a fellow Cherokee. Talton appealed to the Supreme Court on the basis that the tribe’s court had violated his natural rights and contradicted federal law. The Supreme Court, however, declared because Indian tribes are .“domestic dependent nations”, they neither qualify as a state nor as part of the federal government, and therefore, are not subject to any restrictions under the 14th amendment. Similarly, while the VFA 2015 may accord U.S. citizens certain liberties under the federal government, these same liberties do not hold for tribe members. Therefore, it does preempt the BCB’s tribal resolution of mandatory vaccination.
III. Can a federal court provide a remedy to this conflict?
Outcome: No.
Ratio: Article III Section 2 of the Constitution outlines when the Supreme Court has jurisdiction: “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction…”. However, in this case, an Indian tribe does not necessarily fall under “foreign officials” or a “state”, and therefore, the Supreme Court does not have original jurisdiction.
This was affirmed in Cherokee Nation v. Georgia (1831), where the Cherokee Nation sought a federal injunction against Georgia laws that deprived them of rights on reservation land. The Court ultimately declined to rule on the constitutionality of the case because the Cherokee Nation was not considered a “foreign” nation and lacked standing to sue. Chief Justice Marshall defined the relationship between tribes and the federal government as “ward to its guardian”, and they were seen merely as a “savage state” living within U.S. boundaries. Thus, the Supreme Court shouldn’t even be able to judge whether VFA 2015 preempted the tribe’s law. The only way for Ransom Youngblood to bring a case to the Supreme Court would be through the appellate jurisdiction.