Federal Indian Law: Judicial Developments in the October 2018 Supreme Court Term

Summary: Each term, the Supreme Court typically hears arguments in one or more cases concerning the rights and status of Indian tribes and their members. Prominent issues addressed by the Supreme Court in recent terms have included (1) tribes' civil jurisdiction over nonmembers, (2) the scope of tribal sovereign immunity, and (3) termination of Indian parents' rights in adoption cases.

Summary: The October 2018 term likewise featured several Indian law issues: the Court heard arguments in three significant cases, each of which implicated the complex relationships among tribal, state, and federal laws. In Washington State Department of Licensing v. Cougar Den , the Court upheld a Washington Supreme Court decision permitting a tribe to import fuel without paying state fuel taxes. The right to travel on public highways guaranteed by an 1855 treaty, the Court ruled, included the right to transport goods for sale on the reservation without paying additional taxes to do so. In Herrera v. Wyoming , the Court determined that neither Wyoming's admission into the Union nor the designation of the Bighorn National Forest abrogated an earlier treaty preserving tribal hunting rights. Thus, a tribe member's conviction for exercising those hunting rights in violation of Wyoming state law could not stand. Finally, in Carpenter v. Murphy , the Court reviewed whether Congress disestablished the Muscogee (Creek) reservation more than a century ago, with potential consequences for Oklahoma's ability to prosecute major crimes in the eastern half of the state. However, the eight Justices considering this case have not yet reached a decision, and the case is scheduled to be reargued in the October 2019 Supreme Court term.

E ach term, the Supreme Court typically hears arguments in one or more cases concerning the rights and status of Indian tribes and their members. Prominent issues addressed by the Sup reme Court in recent terms have included (1) tribes' civil jurisdiction over nonmembers, (2) the scope of tribal sovereign immunity, and (3) termination of Indian parents' rights in adoption cases. The October 2018 term likewise featured several Indian law issues: the Court heard arguments in three significant cases, each of which implicated the complex relationships among tribal, state, and federal laws.

This report discusses each of these three cases in turn, focusing on analyses of the Supreme Court's interpretive rubric for treaties and relevant legislation, statements about the scope of legislative authority and discussions of legislative intent, and possibilities for future congressional action.

Washington State Department of Licensing v. CougarÂ Den

On March 19, 2019, the Supreme Court upheld a 2017 Washington Supreme Court decision defending a right-to-travel provision in an 1855 treaty (1855 Yakama Treaty) between the United States and the Yakama tribe against a state attempt to impose a motor fuels tax on a Yakama member. The treaty guaranteed the Yakamas the "right, in common with citizens of the United States, to travel upon all public highways." Cougar Den, Inc. (Cougar Den)âa business owned by a Yakama memberâpurchased and transported motor fuel into the state and resold it to on-reservation retailers. The Washington Supreme Court ruled that the treaty insulated Cougar Den from having to pay a Washington State motor fuels tax on that gasoline. The Supreme Court agreed, though in such a way that the limits of the right-to-travel provision in the 1855 Yakama Treaty may still not be perfectly clear. Nonetheless, this case could affect the interpretation of similar provisions in other treaties, and potentially impact state taxation of other activities both on- and off-reservation.

Legal Backdrop: State Taxing Authority over Tribal Activity

In general, states may tax off-reservation activities of Indian tribes unless an explicit federal law exempts those activities. In 1973, the Court decided Mescalero Apache Tribe v. Jones , holding that New Mexico could impose a gross receipts tax on a tribal ski resort operated on nonreservation land leased from the federal government. According to the Court in Mescalero , "[a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State."

Although Cougar Den involved a state tax imposed on off-reservation activity similar to the tax the Court upheld in Mescalero , the case arose against a backdrop of states having difficulty collecting taxes on tribal retailers selling goods to non-Indians on Indian reservations, even where courts had upheld the legality of those taxes. Collecting such taxes without tribal cooperation can be challenging because tribal sovereign immunity may defeat suits against a tribe absent tribal waiver or congressional consent. For example, in Moe v. Confederated Salish and Kootenai Tribes , the Supreme Court held that a state could impose record-keeping requirements on tribal retailers to facilitate collecting state taxes from on-reservation cigarette sales to non-Indians. However, in Washington v . Confederated Tribes of Colville Reservation , the Court later held that tribal sovereign immunity barred a state's enforcement action to compel a tribe to remit such taxes. And when Oklahoma later argued in Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma that "decisions such as Moe and Colville give . . . [states] a right [to levy a tax] without a remedy [to collect the tax]," the Court responded by suggesting that states could tax wholesalers, enter into agreements with tribes for collecting the taxes, or secure congressional legislation to require tribes to remit the taxes.

Factual Background: Washington's Motor Fuels Tax and the 1855Â Yakama Treaty

A Washington statute imposes a motor fuels tax upon licensed importers who bring large quantities of fuel into the state by way of ground transportation. As of 2018, all 24 Indian tribes in Washington, other than the Yakamas, had negotiated fuel tax agreements under which they would pay the motor fuels tax to the state. The question before the Supreme Court in Cougar Den , then, was whether the 1855 Yakama Treaty forbade a similar tax from being imposed on fuel importation activities by Yakama members, on account of that treaty's protection of tribal members' right to travel off-reservation.

Article III of the 1855 Yakama Treaty contains two clauses. The first clause states that "if necessary for the public convenience, roads may be run through the said reservation; and on the other hand, the right of way, with free access from the same to the nearest public highway, is secured to them." The second clause states that the Tribe also has "the right, in common with citizens of the United States, to travel upon all public highways."

Some special canons of construction apply when courts interpret Indian treaties. According to the Supreme Court, courts must "give effect to the terms [of a treaty] as the Indians themselves would have understood them," considering "the larger context that frames the [t]reaty, including 'the history of the treaty, the negotiations, and the practical construction adopted by the parties.'" Partly because many such treaties (including the 1855 Yakama Treaty) were negotiated and drafted in a language other than the Indians' native language and often involved unequal bargaining power, the Supreme Court has stated that "any doubtful expressions in [treaties] should be resolved in the Indians' favor." However, courts must still take care not to extend treaty language beyond what it was intended to cover.

Case Background: The Washington Supreme Court's Decision

When considering whether the State of Washington could collect a motor fuels tax against Cougar Den, the Washington Supreme Court had to determine whether the right to travel conferred by the 1855 Yakama Treaty was implicated. Ultimately, a majority of that court held that it was: the State of Washington could not enforce its motor fuels tax against Yakama tribal members because that would infringe on the Tribe's treaty-protected right to travel. Specifically, the majority held that, "in this case, it was impossible for Cougar Den to import fuel without using the highway." Under the majority's view, the motor fuels tax constituted an impermissible burden or condition on tribal members' use of the highways to transport their goods, which violated the treaty. In reaching this decision, the majority relied heavily on a decision rendered by the U.S. Court of Appeals for the Ninth Circuit in United States v. Smiskin , which held that a Washington State law prohibiting the transportation and possession of unstamped cigarettes without prior notice to the state impermissibly restricted the right to travel protected by the 1855 Yakama Treaty. The Washington Supreme Court, reviewing the motor fuels tax, interpreted Ninth Circuit precedent to mean that the 1855 Yakama Treaty provision applied to "any trade, traveling, and importation that requires the use of public roads."

By contrast, two dissenting state court justices read Ninth Circuit precedent narrowly. Because the fuel tax was directed against trade in a product, not the travel itself, the dissenting justices would have upheld the tax.

Washington appealed the Washington Supreme Court's decision to the U.S. Supreme Court, and the High Court granted review on June 25, 2018.

In their arguments before the Court, the parties disagreed over the correct interpretation of the 1855 Yakama Treaty. Specifically, the parties disputed how the Yakama would have originally understood the right-to-travel provision. Citing another Ninth Circuit case, Cougar Den argued that the 1855 Yakama Treaty "guarantees the Yakama Nation and its members the ' right to transport goods to market without restriction .'" However, the Washington State taxing authority argued for a more literal and narrow interpretation of the treaty language, emphasizing that the right-to-travel provision contains no mention of taxes. In the state's view, because the fuel tax did not restrict tribe members' ability to travel on public highways, and because the 1855 Yakama Treaty "says nothing about a tax exemption at all," the Treaty did not preempt the tax's applicability to tribe members.

The Supreme Court handed down its decision on March 19, 2019. By a 5-to-4 vote, the Court affirmed the Washington Supreme Court's decision, thereby prohibiting Washington from assessing its motor fuels tax against Cougar Den. However, there was no majority opinion; though five Justices voted to affirm, Justices Sotomayor and Kagan joined an opinion by Justice Breyer, while Justice Ginsburg joined a separate opinion by Justice Gorsuch.

Justice Breyer's opinion noted that the treaty was not written in the tribe's native language, which Justice Breyer declared "put the Yakamas at a significant disadvantage." Justice Breyer contended that, based on precedent going back more than 100 years, courts interpreting an Indian treaty must "see that the terms of the treaty are carried out, so far as possible, in accordance with the meaning they were understood to have by the tribal representatives" at the time. Citing the historical record, Justice Breyer explained that the Yakamas would have understood the right to travel as including "the right to travel with goods for purposes of trade." Accordingly, because "to impose a tax upon traveling with certain goods burdens that travel," the motor fuels tax directly burdened Cougar Den's ability to travel with goods for purposes of trade, and thus impermissibly violated the 1855 Yakama Treaty. Justice Breyer also concluded that the tax at issue specifically burdened the type of travel the Yakamas had negotiated to protect: travel by public highway. (Washington's motor fuels tax was not assessed on distributors who imported fuel by pipeline or boat.)

Justices Gorsuch, joined by Justice Ginsburg, took a somewhat shorter route to the same conclusion, noting "unchallenged factual findings" from an earlier federal district court case that the Yakamas "understood the right-to-travel provision to provide them 'with the right to travel on all public highways without being subject to any licensing and permitting fees related to the exercise of that right while engaged in the transportation of tribal goods.'" That factual finding, confirmed by a "wealth of historical evidence," in their view required a ruling for the Yakamas.

While five Justices agreed that applying the fuel tax to Cougar Den would violate the 1855 Yakama Treaty, the Court's failure to render an opinion agreed upon by a majority of the Justices leaves some question as to how federal and state courts will construe and apply Cougar Den . To the extent that Justice Gorsuch's opinion rests on somewhat narrower grounds than Justice Breyer's, that may be deemed to be the controlling opinion of the Court. Because it relied on unchallenged evidence of the tribe's understanding of the right-to-travel provision, Justice Gorsuch's opinion leaves open the possibility that other, identical terms in other treaties could be interpreted differently, if there is different evidence about the relevant tribes' understanding.

Chief Justice Roberts wrote an opinion on behalf of the four dissenting Justices, objecting that "the mere fact that a state law has an effect on the Yakamas while they are exercising a treaty right does not establish that the law impermissibly burdens the right itself." The Chief Justice's dissent went on to express concern that the plurality and concurring opinions could, for example, foreclose the applicability of "law[s] against possession of drugs or illegal firearms" by tribe members on public highways, because tribe members could invoke the treaty-protected right to travel when traveling with such items. The plurality responded to this concern by emphasizing that it did not "hold that the treaty deprives the State of the power to regulate to prevent danger to health or safety occasioned by a tribe member's exercise of treaty rights."

Implications and Considerations for Congress

The Court's decision in Cougar Den might prompt Congress to further consider the ability of states to enforce and collect valid state taxes from Indian tribes. Cougar Den involved a considerable amount of tax revenue; in December 2013, Washington assessed $3.6 million in taxes, penalties, and licensing fees against Cougar Den. And there are similar right-to-travel provisions in treaties with other tribes, including the Nez PercÃ© Indians of Idaho and the Flathead, Kootenay, and Upper Pend d'Oreilles Indians of Montana. These similarly worded treaties could give rise to future challenges to state taxing authority over tribe members. Moreover, Congress could choose to act in the event legislators believe that Chief Justice Roberts's fears about health and safety laws are well-founded. Because of Congress's plenary authority over Indian matters, only Congress, not a state, could act to limit or eliminate a right granted by treaty. However, if Congress chooses to do so, its intention must be "clear and plain."

Cougar Den also might prompt further reflection on the differences between state and federal tax exemptions for tribes. Relying on Supreme Court precedent upholding a tax exemption based on explicit language in the General Allotment Act, the Ninth Circuit, for example, has generally held that an exemption from a federal tax must be explicit. Accordingly, the Yakama tribe is currently not exempt from federal heavy vehicle and diesel fuel taxes or from the federal excise tax on manufactured tobacco products because the right-to-travel provision in the 1855 Yakama Treaty is not sufficiently explicit to exempt the tribe from federal taxes. Legislation could be drafted either to eliminate or to enshrine that different treatment.

In Herrera v. Wyoming , the Supreme Court resolved a disagreement about whether either Wyoming's admission into the Union or the later establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians' treaty rights to hunt on "unoccupied lands of the United States." The Court concluded that neither event categorically affected those treaty rights.

This decision was especially notable because the Supreme Court formally repudiated its 1896 ruling in Ward v. Race Horse , which had held that Wyoming's admission into the Union effectively abrogated a similar hunting-rights provision in a treaty between the United States and another Indian tribe. Race Horse had already appeared to be in considerable tension with the Court's decision over a century later in Minnesota v. Mille Lacs Band of Chippewa Indians , when the Court declared that "[t]reaty rights are not impliedly terminated upon statehood." However, it was not until Herrera that the tension was resolved; the Court stated that it was "formaliz[ing] what is evident in Mille Lacs itself. While Race Horse 'was not expressly overruled' in Mille Lacs , 'it must be regarded as retaining no vitality' after that decision." This rejection of Race Horse undermined other cases relying on it, causing a domino effect that ultimately led the Supreme Court to reverse the Wyoming state court decisions that had declined to recognize the Crow Tribe's treaty hunting rights.

Case Background: the Wyoming State Court Decisions

The Herrera case arose after the petitioner, a Crow Tribe member, tracked several elk beyond the Crow reservation's Montana borders into the Bighorn National Forest in Wyoming. Herrera and his hunting companions eventually killed three elk, and Herrera was criminally charged by Wyoming with violating its state hunting laws.

Herrera moved to dismiss the charges, arguing that he was exercising subsistence hunting rights long protected by the 1868 Treaty of Fort Laramie (1868 Treaty) between the Crow Tribe and the United States. In exchange for ceding much of the territory that would eventually become Wyoming to the United States, the Crow Tribe received a guarantee of "the right to hunt on the unoccupied lands of the United States so long as game may be found thereon . . . ." According to Herrera, this treaty provision provided him with permission to hunt off-reservation in the Bighorn National Forest and prevented Wyoming from going forward with his prosecution under state law. Wyoming disagreed, contending that the hunting rights conferred to Crow Tribe members under the 1868 Treaty were abrogated following Wyoming's 1890 admittance into the Union or, alternatively, the 1897 establishment of the Bighorn National Forest.

Rejecting Herrera's claim of treaty protection, the trial court determined it was bound by a 1995 United States Court of Appeals for the Tenth Circuit (Tenth Circuit) decision in Crow Tribe of Indians v. Repsis . That decision held that the 1868 Treaty's hunting-rights provisions had been abrogated for the same reasons as the similarly worded treaty provisions in Race Horse . Alternatively, the Tenth Circuit concluded that the establishment of the Bighorn National Forest in 1897 rendered those lands "occupied" and therefore no longer subject to the access rights given to Crow tribal members by the 1868 Treaty.

According to the Wyoming court, principles of collateral estoppel prevented Herrera from "attempting to relitigate the validity of the off-reservation treaty hunting right that was previously held to be invalid" by the Tenth Circuit. After Herrera was convicted and denied appeal in a higher Wyoming state court, he sought review in the U.S. Supreme Court, which granted his request.

Legal Backdrop: Court Decisions Interpreting Statehood's Effects on Tribal Treaty Rights

A key issue in Herrera concerned the interplay of the Court's prior decisions considering statehood's effect on the continuing viability of treaties between the United States and Indian tribes located within a newly acceded state's territorial boundaries. In Race Horse , the Court had taken the view that Congress's legislative action in admitting a state to the Union abrogated earlier treaties conferring tribal rights to nonreservation lands within the new state's territory. This decision was partly premised on the equal footing doctrineâthe idea that newly admitted states must enjoy sovereignty equal to that of existing states.

In Race Horse itself, the Court held that a hunting right in a Shoshone-Bannock treatyâa provision with language identical to the 1868 Treatyâviolated the equal footing doctrine and had been abrogated by legislation admitting Wyoming to the Union. The Supreme Court reasoned that Wyoming's admission to the Union must have impliedly abrogated the treaty right, because "all the states" have the power "to regulate the killing of game within their borders," and the language of the Shoshone-Bannock treaty would impermissibly limit Wyoming's power to do so relative to other states. In other words, the "two facts" of the treaty's hunting rights and of Wyoming's statehood were "irreconcilable, in the sense that the two, under no reasonable hypothesis, [could] be construed as co-existing." The fact that Congress made no express statement abrogating the Shoshone-Bannock treaty rights did not change that reasoning. As a potentially alternative basis for its decision, the Court explained that because the treaty had been enacted while the land had territory status, it necessarily made only an "essentially perishable . . . temporary and precarious" promise, "intended to be of a limited duration."

The equal footing doctrine's primacy in federal Indian law was short-lived, however. In United States v. Winans , less than a decade after Race Horse , the Court upheld tribal fishing rights granted to the Yakama tribe under the 1855 Yakama Treaty. The Court specifically concluded that those treaty rights were not displaced by the State of Washington's admission into the Union. According to the Winans Court,

The extinguishment of the Indian title, opening the land for settlement, and preparing the way for future states, were appropriate to the objects for which the United States held the territory. And surely it was within the competency of the [nation] to secure to the Indians such a remnant of the great rights they possessed as "taking fish at all usual and accustomed places." Nor does it restrain the state unreasonably, if at all, in the regulation of the right.

In short, just as Congress had the power to extinguish tribal title to the land, it had the power to reserve fishing rights to the tribes on nonreservation landâand respecting that preservation of rights was a reasonable restraint on, rather a dramatic curtailment of, state sovereignty.

But Race Horse 's holding was not explicitly overruled by Winans , and roughly a century later, Wyoming charged another Crow Tribe member with illegally hunting elk in the Bighorn National Forest (in a case called Crow Tribe of Indians v. Repsis , which predated Herrera's case, but involved similar factual circumstances). The Crow Tribe sought a declaratory judgment in federal court, hoping to resecure the 1868 Treaty hunting and fishing rights. The Tenth Circuit ruled against the tribe, concluding that because the relevant provision of the 1868 Treaty was virtually identical to the one abrogated by the Supreme Court in Race Horse , the Race Horse decision mandated that the treaty rights be considered abrogated by statehood. In so doing, the Tenth Circuit also emphasized Race Horse 's conclusion that the 1868 Treaty granted only "temporary and precarious" rights, such that Congress could not have intended them to be binding on a later-created state.

A few years after Repsis , the Supreme Court decided Minnesota v. Mille Lacs Band of Chippewa Indians , which involved fishing rights under an 1837 tribal treaty in Minnesota. There, the Court declined to apply Race Horse and rejected its reasoning, at least in substantial part. The earlier decision's equal-footing holding rested on a "false premise," the Court said, and its language about "temporary and precarious" treaty rights was "too broad to be useful." Noting that courts "interpret Indian treaties to give effect to the terms as the Indians themselves would have understood them," the High Court explained that "Congress may abrogate Indian treaty rights, but it must clearly express its intent to do so." Since there was no "clear evidence" of Congress's intent to abrogate the tribal fishing rights at issue, those rights simply were not abrogated. In the view of the Court, "[t]reaty rights are not impliedly terminated upon statehood."

Although highly critical of Race Horse , the Court majority in Mille Lacs did not expressly overrule the earlier decision (though Chief Justice Rehnquist, writing in dissent, accused the majority of overruling Race Horse " sub silentio ," via "a feat of jurisprudential legerdemain").

The Herrera Decision: the Impact of Statehood

Thus, when Herrera came before the Supreme Court, the question of whether Race Horse would affect the outcome was a point of disagreement between the parties. Herrera argued that " Mille Lacs forecloses any suggestion that Wyoming's admission terminated the Tribe's treaty hunting rights." Wyoming disagreed, arguing that at least one aspect of Race Horse remained good lawânamely, its recognition that rights conferred to tribal members by treaty may be only of a "temporary and precarious nature," so that the "the proper inquiry is whether Congress intended . . . [those] rights to be perpetual or to expire upon the happening of a clearly contemplated event, such as statehood." According to Wyoming, Mille Lacs did not disturbâand indeed, reaffirmedâthis aspect of Race Horse , which allowed for the conclusion that statehood terminates such temporary rights.

Ultimately, the Supreme Court rejected Wyoming's arguments by a 5-4 vote. Writing for the Court majority, Justice Sotomayorâjoined by Justices Ginsburg, Breyer, Kagan, and Gorsuchâacknowledged that Race Horse "relied on two lines of reasoning"ânamely the equal footing doctrine and the "temporary and precarious" nature of certain treaty rights. The Court determined that Mille Lacs had "undercut both pillars of Race Horse 's reasoning," and "methodically repudiated that decision's logic." "[T]he crucial inquiry for treaty termination analysis" established by Mille Lacs "is whether Congress has expressly abrogated an Indian treaty right or whether a termination point identified in the treaty itself has been satisfied." Unless the legislation granting statehood "demonstrates Congress's clear intent to abrogate a treaty" or statehood is mentioned in the treaty itself as a termination point, "[s]tatehood is irrelevant" to treaty termination analysis.

Applying the Mille Lacs test to Herrera's case thus involved two questions: (1) Did the Wyoming Statehood Act "show that Congress intended to end the 1868 Treaty hunting right"? and (2) Was there any evidence "in the treaty itself that Congress intended the hunting right to expire at statehood"? The Supreme Court concluded that the answer to both questions was "No"âthere was "simply . . . no evidence" in either the Wyoming Statehood Act or in the treaty itself that Congress intended the Crow Tribe's hunting rights to end at statehood.

Herrera faced an additional procedural hurdle at the Supreme Court: the parties disagreed over whether he should even be legally allowed to raise his arguments in the first place. The Wyoming state courts had ruled that the Tenth Circuit's 1995 decision in Repsis barred Herrera from even being able to litigate the question of whether the Crow Tribe retained any off-reservation hunting rights under the 1868 Treaty. In short, they said that question had already been answered. Thus, much of the briefing at the Supreme Court focused on issue preclusion, a doctrine that prevents parties from resurrecting an issue already directly decided in a previous case. Both Herrera and the United States as amicus curiae argued that preclusion should not apply when there had been an intervening change in the law, like the Supreme Court's Mille Lacs decision. Wyoming, however, maintained that Mille Lacs had not overruled Race Horse in its entirety, and that at least one line of its reasoning survived: in Wyoming's view, issue preclusion should at least attach to the Tenth Circuit's finding in Repsis that the 1868 Treaty rights were only temporary . In other words, Wyoming argued that Herrera should not be permitted to relitigate the issue of whether Congress intended the 1868 Treaty's hunting rights to be "temporary" rights that expired after statehood because the Tenth Circuit had already definitively answered that question.

For the same reasons that the Supreme Court disagreed that statehood had necessarily abrogated Herrera's treaty rights, it likewise rejected Wyoming's claim of issue preclusion. Mille Lacs constituted a "change in law" that justified "an exception to preclusion in this case." "At a minimum," the Court said, "a repudiated decision does not retain preclusive force."

The Herrera Decision: the Meaning of "Unoccupied Land"117

Having decided that the 1868 Treaty's hunting rights provision remained in effect even after Wyoming statehood, the Court then needed to decide whether the Bighorn National Forest should be considered "unoccupied" land under the terms of the treaty. The Tenth Circuit in Repsis had concluded that the establishment of the national forest in 1897 rendered the land "occupied" by the federal government because it was "no longer available for settlement," and the resources from the land could not be used "without federal permission." Wyoming similarly argued that "[c]reation of the Bighorn National Forest was an act of occupation, placing that land outside of the ambit of the Crow Treaty right"; in the state's view, because the national forest "is federal property, and the United States decides who may enter and what they may do," the national forest should constitute occupied land on which the 1868 Treaty would grant no special privileges.

On the other hand, Herrera contended that the text and historical record of the 1868 Treaty demonstrate an understanding by the parties that "the term 'occupied' entailed actual, physical settlement of the land by non-Indian settlers." The United States, writing as amicus curiae, agreed. Herrera and the United States noted that, in other cases, the declaration of a national forest had led courts to declare the designated land "open and unclaimed."

The Supreme Court reiterated that provisions of treaties with tribes must be interpreted as they would naturally have been understood by the tribes at the time those treaties were executed. In this case, the Supreme Court concluded "it is clear that the Crow Tribe would have understood the word 'unoccupied' to denote an area free of residence or settlement by non-Indians." That conclusion was based on analysis of the treaty's text, which used variations of the words "occupy" and "settle" at various points, and supported by both contemporaneous dictionary definitions and historical evidence from the time of the treaty negotiation and signing. Accordingly, "President Cleveland's proclamation creating Bighorn National Forest did not 'occupy' that area within the treaty's meaning. To the contrary, the President 'reserved' the lands 'from entry or settlement.'"

The Herrera Decision: Dissent and Limitations

The majority opinion in Herrera noted that its scope was limited in two distinct ways. First, the majority held only "that Bighorn National Forest is not categorically occupied, not that all areas within the forest are unoccupied." This leaves open the possibility that some parts of the Bighorn National Forest contain enough indicia of settlement to be considered "occupied," even though the rest of the forest is notâwhich would preclude exercise of Crow tribal hunting rights in those areas. Second, the Supreme Court declined to consider arguments that Wyoming could regulate the exercise of hunting rights to promote conservation purposes. Because those arguments were not considered by the state appellate court, the Supreme Court did "not pass on the viability of those arguments" in its opinion. That may leave open another avenue by which Wyoming could limit the exercise of tribal hunting rights within its borders.

A dissent written by Justice Alito was joined by the remaining three members of the Court. The four dissenting Justices would have determined that the Tenth Circuit's decision in Repsis ("holding that the hunting right conferred by [the 1868 Treaty] is no longer in force") was still binding, such that "no member of the Tribe will be able to assert the hunting right that the Court addresses." In other words, the dissent would have started with the parties' issue preclusion arguments, and would have determined that Herrera had no right to relitigate an issue that had already been settled by a court.

More specifically, although the dissent expressed some doubt that Mille Lacs represented a sufficient change in the law to foreclose Repsis 's conclusion that Wyoming statehood abrogated the 1868 Treaty rights, it would not have reached that question. Instead, the dissent would have given preclusive effect to Repsis 's alternate legal conclusion, which it says existed independently of Race Horse ânamely, that the Repsis court decided the Bighorn National Forest was not "unoccupied" within the treaty's meaning.

Congress's plenary authority to govern interactions with Indian tribes remains clear. Congress may at any time expressly disavow any provision of the 1868 Treaty, or may plainly reaffirm its commitment to any Indian treaty that remains in effect. To the latter end, Congress could, if it wished, clarify that the Bighorn National Forest (or other national forests) should be treated as unoccupied lands for the purposes of construing Indian treaty rights. By contrast, Congress could also choose to broadly abrogate hunting and fishing rights in national forests or other areas, but Herrera reaffirms that if Congress does so, it must clearly state that intention.

In Carpenter v. Murphy , the Supreme Court is reviewing a decision by the U.S. Court of Appeals for the Tenth Circuit (Tenth Circuit) concerning whether Oklahoma could legally charge and convict Patrick Murphy, a member of the Muscogee (Creek) Nation who was convicted of killing a fellow tribe member. The validity of Murphy's murder conviction may turn on whether his crime was committed within the boundaries of the Muscogee (Creek) reservationâa reservation that Oklahoma says ceased to exist in the early 1900s. Although the Oklahoma state courts rejected Murphy's efforts to overturn his conviction, the Tenth Circuit concluded that the crime did occur on reservation land, and that Oklahoma thus lacked authority to prosecute Murphy.

Although the Supreme Court heard oral arguments in Carpenter v. Murphy at the end of 2018, it ordered the case restored to the calendar and set for reargument in the October 2019 term. Whether the Court will ultimately agree with the Tenth Circuit's decision is uncertain, but if it does, the decision could have significant consequences beyond Murphy's case. The land where the crime occurred would then be "Indian country" under federal law, which Oklahoma says would significantly limit its criminal jurisdiction over offenses committed by Indians on such land. Such a decision could prompt additional litigation concerning the status of other tribal lands within Oklahoma.

The Major Crimes Act and "Indian Country"

The parties have asked the Supreme Court to decide whether the land that was historically designated as belonging to the Muscogee (Creek) Nation constitutes "Indian country," and if so, whether Oklahoma has any criminal jurisdiction over crimes like Murphy's. The federal government (and Congress in particular) has long been recognized as having plenary authority over Indian affairs, so states generally cannot exercise criminal jurisdiction over Indians in "Indian country" without federal permission. A federal statute defines "Indian country" to mean (1) all land within an Indian reservation, (2) all dependent Indian communities, and (3) all Indian allotments that still have Indian titles. An area qualifies as Indian country if it fits within any of these three categories, meaning a formal designation of Indian lands as a "reservation" is not required .

Federal law establishes parameters for when states may prosecute certain crimes committed within Indian country. Most relevant to this case, the Major Crimes Act reserves federal jurisdiction over certain serious crimes, like murder and kidnapping, when committed by an Indian within Indian country. Federal jurisdiction under the Major Crimes Act generally forecloses overlapping state (though not tribal) jurisdiction, though legislative exceptions permit some states to exercise jurisdiction over such crimes.

The Supreme Court has explained that Congress alone has the power to change or erase reservation boundaries. Once land is designated as a reservation, it generally stays that way until Congress eliminates ("disestablishes") or reduces ("diminishes") it. Appealing his state murder conviction to the Tenth Circuit, Murphy contended that the Muscogee (Creek) reservation had never been disestablished and therefore constituted "Indian country," precluding state jurisdiction over his offense. The Tenth Circuit agreed.

In its decision, the Tenth Circuit briefly described the history of the Muscogee (Creek) reservation. In the 1820s, the federal government forcibly relocated the tribe's members (and members of several other tribes) to what is now present-day Oklahoma. As part of that relocation, the government signed a series of treaties with the Muscogee (Creek) Nation, ultimately giving the tribe a vast area of land roughly equivalent to present-day Oklahoma.

That tract of land was later reduced. The final reduction occurred after the Civil War, when the Treaty of 1866 required the Muscogee (Creek) Nation to transfer the western half of its new lands back to the United States.

Though the Muscogee (Creek) Nation later experienced many changes in its relationship with the federal governmentâmost notably related to tribal governance and a push for individual ownership of the landâthe boundaries of the Muscogee (Creek) land remained generally unchanged until at least the early 1900s. At that point, the "unique history" of Oklahoma began to transition toward statehood, effectively merging eastern Indian lands and western non-Indian lands into a single geographic entity.

To determine whether Congress intended to disestablish the Muscogee (Creek) reservation land, the Tenth Circuit applied a three-step analysis employed in the Supreme Court's 1984 decision, Solem v. Bartlett . Under this framework, courts examine (1) the language of the governing federal statute; (2) the historical circumstances of the statute's enactment; and (3) subsequent events such as Congress's later treatment of an affected area. Importantly, the Solem framework instructs courts to resolve any uncertainty in favor of the tribes: if the evidence is not clear, courts "are bound by our traditional solicitude for the Indian tribes to rule that diminishment did not take place and that the old reservation boundaries survived . . . ."

Using this framework, the Tenth Circuit agreed with Murphy that his criminal conduct occurred in Indian country, and Oklahoma therefore lacked jurisdiction over it. Although Oklahoma referenced eight separate federal acts that it viewed as collectively disestablishing the Muscogee (Creek) reservation, the Tenth Circuit ruled that none of those statutes clearly referred to disestablishment, and in some instances reflected Congress's continued recognition of the reservation's borders. Oklahoma's evidence that Congress intended to change its governance over the Muscogee (Creek) reservation failed to convince the Tenth Circuit that Congress also intended to erase the reservation boundaries. Similarly, the Tenth Circuit concluded that events subsequent to legislation cited by Oklahoma insufficiently supported the argument that Congress intended the Muscogee (Creek) reservation to be disestablished. In sum, the Tenth Circuit did not find that Congress clearly intended to disestablish the Muscogee (Creek) reservation, so it concluded that Oklahoma lacked jurisdiction to convict Murphy for a murder occurring on those lands.

Oklahoma petitioned for certiorari review of the Tenth Circuit's decision, which the Supreme Court granted on May 21, 2018. In its brief to the Court, Oklahoma claimed that no one has treated the relevant land like a reservation since Oklahoma became a state in 1906. It also argued that because Congress broke certain promises in the treaties that had established the reservation, Congress must have intended to disestablish it. According to Oklahoma, it "is inconceivable that Congress created a new State by combining two territories while simultaneously dividing the jurisdiction of that new State straight down the middle by leaving the former Indian Territory as Indian country." In other words, in Oklahoma's characterization of the matter, Congress could not have intended the state to lack jurisdiction over major crimes in half its land mass. Finally, Oklahoma contended that the Solem framework should be inapplicable in the unique context of Oklahoma statehood.

The federal government made similar arguments in a brief it filed in support of Oklahoma. However, the federal government additionally claimed that Congress had elsewhere granted Oklahoma broad criminal jurisdiction over Indian country, which it said should enable prosecution of cases like Murphy'sâregardless of whether his crime was committed in Indian country. More specifically, the United States argued that Congress had eliminated tribal jurisdiction and evinced an intent to have all crimes prosecuted by the same entity (whether committed by or against a tribal member or not) throughout the territory that became Oklahoma; in the United States' view, that intent should not be "implicitly" repealed by later statutes like the Major Crimes Act.

Supplemental Briefing Ordered by the Supreme Court

Following oral argument, the Supreme Court ordered both Oklahoma and Murphy to address whether or not Oklahoma would have criminal jurisdiction over cases like Murphy's if the crimes were found to have been committed in Indian country. It also asked the parties to address whether a reservation could ever not qualify as Indian country. These questions might be relevant if, for example, the Court sought additional information to clarify whether it would need to find that the Muscogee (Creek) reservation had been disestablished in order to conclude that Oklahoma could exercise jurisdiction over Murphy.

In Murphy's supplemental brief, he began by stressing that Oklahoma had disavowed the argument that it could exercise criminal jurisdiction over him if the Muscogee (Creek) reservation endured. Murphy then argued that Congress has never given Oklahoma jurisdiction to prosecute crimes committed by Indians, andâanticipating the assertion that several statutes could be read together to implicitly accomplish that resultâdeclared that "when Congress transfers jurisdiction to States, its statutes are bell-clear." None of the statutes mentioned by the United States in its briefing, Murphy argued, do anything like clearly grant criminal jurisdiction over tribes and tribal members to the State of Oklahoma.

Oklahoma adopted the United States' view that it had jurisdiction to prosecute crimes regardless of the Muscogee (Creek) land's status, based on a series of laws passed by Congress between 1897 and 1907. However, the state asked the Court not to "leave open whether [Muscogee (Creek) and other historical territories] constitute Indian reservations today," arguing that such a decision "risks undermining the convictions of many federal prisoners" and "may also undermine federal and tribal authority currently exercised on restricted allotments and trust lands."

Both Murphy and Oklahoma answered the Court's second question in the negative: they agreed, under current law a federally established reservation always constitutes "Indian country" under the governing statute.

Anticipating the U.S. Supreme Court's Decision

The Supreme Court heard oral arguments in this case on November 27, 2018. Justice Gorsuch was not present at oral arguments and is not slated to participate in deciding the caseâpresumably because he participated in earlier discussions about this case while he was still a judge on the Tenth Circuit. A decision was expected by the end of the Supreme Court's 2018 term, but on June 27, 2019, the Court ordered this case restored to the calendar for reargument in the next term.

If the Supreme Court reverses the Tenth Circuit and finds that the Muscogee (Creek) reservation was disestablished, Murphy's conviction and death sentence would be reinstated, and Oklahoma would presumably continue to prosecute cases like Murphy's. But if the Supreme Court agrees with Murphy and the Tenth Circuit that the Muscogee (Creek) reservation has not been disestablished, the decision's ramifications for federal, state, and tribal jurisdiction in the eastern half of Oklahoma might be significant, and could extend well beyond the Muscogee (Creek) reservation. In addition to the Muscogee (Creek) Nation, several other tribes were forcibly relocated to Oklahoma under similar circumstances and under the same or similar treaties. The parties in Murphy filed a joint appendix containing several historical maps depicting reservation boundaries in Oklahoma in the early 1900s. Oklahoma has argued that, if those statutes did not disestablish the Muscogee (Creek) reservation, similar arguments could be maintained with respect to other lands comprising most of eastern Oklahoma. If the Supreme Court agrees with the Tenth Circuit that Congress never disestablished reservations like the one in this case, Oklahoma argues that its ability to prosecute many crimes in the eastern part of the state would be significantly narrowed. According to Oklahoma and some amici, the Tenth Circuit's decision "would create the largest Indian reservation in America today . . . . That revolutionary result would shock the 1.8 million residents of eastern Oklahoma who have universally understood that they reside on land regulated by state government, not by tribes." If a significant part of Oklahoma is Indian country, then the burden would shift to the federal and tribal governments to prosecute many offenses involving Indian offenders or victims âat least, absent other federal statutory authority allowing the state to prosecute.

However, other amici have joined Murphy in arguing that the Tenth Circuit's decision should be upheld. Some, including the Muscogee (Creek) Nation, contend that recognition of the Muscogee (Creek) reservation's continued existence would leave intact most state and local functions on those lands. For example, the Muscogee (Creek) Nation argues that even on reservation land, state and local governments retain most civil jurisdiction, including taxing and zoning authority.

The Supreme Court might also seek to avoid the question of whether the Muscogee (Creek) reservation still exists. For example, the Supreme Court could decide either to reassess the approach it endorsed in Solem , orâas suggested by Tenth Circuit Chief Judge Tim Tymkovichâconclude that the Solem framework is ill-suited to the unique circumstances surrounding Oklahoma's statehood. Alternatively, the Court could adopt the federal government's argument that Oklahoma had jurisdiction to prosecute Murphy because earlier statutes granted such jurisdiction, thereby rendering the Major Crimes Act inapplicable.

Regardless of the Supreme Court's decision, the choice to disestablish a reservation still lies solely with Congress. If the Supreme Court agrees that the Muscogee (Creek) reservation still exists, a statute clearly disestablishing it would limit this case's applicability in the future. Congress could also pass a law expressly giving Oklahoma jurisdiction to prosecute major crimes in Indian country if the Supreme Court holds that no such law currently exists.

If the Supreme Court disagrees with the Tenth Circuit and holds that the Muscogee (Creek) reservation no longer exists, Congress couldâdepending on the exact grounds of the rulingâcountermand that decision by reestablishing or clarifying the continued existence of the Muscogee (Creek) reservation.


Adding Countries to the Visa Waiver Program: Effects on National Security and Tourism

Summary: The Visa Waiver Program (VWP), which allows citizens of certain countries to visit the United States for up to three months without a visa, has two explicit missions: to enhance national security and to boost the U.S. travel and tourism sectors. On November 8, 2019, the United States designated Poland into the VWP, bringing the number of participating countries to 39. A concern for Congress is whether the VWP exposes the United States to security threats, despite implementation of strict security requirements over recent years. At the same time, because of longstanding congressional interest in promoting the U.S. travel and tourism sectors, many lawmakers support adding more countries to the VWP.

Summary: A key goal of the VWP is to improve standards for aviation security, travel documents, and law enforcement in countries around the world. To qualify for the VWP, countries must issue electronic passports, report information on all lost and stolen passports to the United States through the International Criminal Police Organization (INTERPOL), and share information on travelers who may pose a terrorist or criminal threat. Every VWP traveler must obtain preclearance to board a flight to the United States through the Electronic System for Travel Authorization (ESTA). Supporters of the VWP see admission into the program as an incentive for foreign countries to increase their security infrastructure and information sharing with the United States. A competing view is that despite security improvements following the 2015 terrorist attacks in Europe, such as screening of passengers entering under the VWP based on past travel to a country known as a terrorist sanctuary, the program remains a national security vulnerability.

Summary: Another objective of the VWP is to facilitate and encourage foreign business and leisure travel from high-volume and low-risk countries to the United States. In FY2018, 22.8 million nonimmigrant visitorsâconstituting nearly one-third of all visitor admissions to the United Statesâarrived through the VWP. Figures from U.S. Travel, the industry group representing travel and tourism organizations, show that nationals from VWP countries generated an estimated $190 billion in economic activity and supported close to 1 million jobs in the United States in 2017. In addition, the U.S. government's National Travel and Tourism Office (NTTO) reports that a record 80 million international travelers visited the United States in 2018, with the number falling slightly in 2019. The number of foreign visitor arrivals in 2019 indicated that the United States would likely fall short of the goal set by the federal government's travel and tourism strategy of attracting 100 million visitors annually by the end of 2021. The COVID-19 pandemic has sharply reduced foreign tourism in 2020 as countries have discouraged international travel and required arriving passengers to quarantine themselves for extended periods, probably putting the 2021 goal out of reach. Nonetheless, advocates for the U.S. travel and tourism industries argue that adding more countries to the VWP would further promote tourism, trade, and commerce by increasing the number of overseas visitors traveling to the United States.

Summary: Activity in the 116 th Congress related to the VWP seeks to expand the number of countries by changing the qualification criteria or designating specific countries. Other bills would rename the VWP to "Secure Travel Partnership" to reflect one of its main goals of securing U.S. borders. Legislation in the 116 th Congress also addresses the ESTA fee paid by VWP applicants. In December 2019, Congress authorized the continued use of the ESTA fee to partially fund Brand USA, a national tourism promotion program, through September 30, 2027. Congress also raised the ESTA fee from $14 to $21 (Division I, Title 8 of P.L. 116-94 ). The effective date of the new ESTA fee has not yet been announced.

The U.S. government's Visa Waiver Program (VWP) allows eligible nationals from 39 countries to enter the United States for stays of fewer than 90 days for tourism or business purposes without applying for a visa from a U.S. embassy or consulate (see Figure 1 ). Originally established in 1986 as a pilot program, the VWP was made permanent in 2000. VWP countries now account for the largest group of visitors to the United States other than travelers from neighboring Canada and Mexico. In FY2018, 22.8 million VWP visitors were admitted to the United States, the largest number of people ever to enter under the program in a single year, up almost 30% from 17.6 million in FY2008.

Countries that want to join the VWP must meet strict criteria, including signing on to information-sharing agreements, issuing tamper-proof travel documents, and upholding security standards at their borders. Travelers from VWP countries are not automatically guaranteed admission into the United States. Every VWP traveler must obtain preclearance to board a flight or ship to the United States through the Electronic System for Travel Authorization (ESTA). This web-based application checks the traveler's information against relevant law enforcement and security databases and determines eligibility for travel under the VWP. In addition, as with all international travelers, Customs and Border Protection (CBP) officers may deny entry to a VWP traveler upon arrival.

This report offers an overview of the VWP. It discusses the potential effects on national security and considers the likely economic effects on the U.S. travel and tourism industries if more countries were to be added to the program. The report also reviews legislative proposals in the 116 th Congress related to the expansion and implementation of the VWP, and legislation targeting U.S. travel promotionâânamely the Brand USA program, which is partially funded by ESTA.

The Department of Homeland Security (DHS), in consultation with the Department of State (DOS), has the authority to designate participants into the VWP. The Secretary of State must formally make the nomination; DHS then conducts a final review and certifies that the aspiring participant meets all the requirements. To be eligible, a country must comply with an extensive list of conditions specified in several different laws. It must

offer reciprocal privileges to U.S. citizens; have had a nonimmigrant visitor visa refusal rate of less than 3% for the previous year or a lower average percentage over the previous two fiscal years; issue electronic, machine-readable passports that contain a biometric identifier (known as e-passports ); certify that it issues tamper-resistant, machine-readable visa documents that incorporate biometric identifiers, which are verifiable at the country's port of entry; certify that it has in place mechanisms to validate machine-readable passports and e-passports at each port of entry; enter into an agreement with the United States to report or make available through INTERPOL information about the theft or loss of passports no later than 24 hours after a theft or loss is reported to the VWP country; certify, to the maximum extent allowed under its laws, that it is screening each foreign national who is admitted or departs, using relevant INTERPOL databases and notices, or other means designated by the Secretary of Homeland Security (this requirement only applies to countries that have an international airport); accept the repatriation of any citizen, former citizen, or national against whom a final order of removal from the United States is issued no later than three weeks after the order is issued; enter into and fully implement an agreement with the United States to share information regarding whether a national traveling to the United States represents a threat to U.S. security or welfare; and be determined, by the Secretary of Homeland Security, in consultation with the Secretary of State, not to compromise the law enforcement or security interests of the United States by its inclusion in the program.

As of March 2020, 31 European countries, 7 Asia-Pacific countries, and 1 country in South America are in the program (see Figure 1 ).

Nonimmigrant Visitor Visa Refusal Rate Versus Overstay Rate

One of the VWP criteriaâthe nonimmigrant, or temporary, visitor visa refusal rateâhas been the subject of scrutiny by Congress. This rate represents the proportion of individuals whose applications for tourist or business visas have been rejected by U.S. consular officials in their home countries. When the VWP was conceived, some legislators argued that the number of nonimmigrants who overstay the terms of their entry under the VWP would be a better standard for future program participation, as the nonimmigrant visitor visa refusal rate is not based on the actual behavior of nonimmigrants. However, DHS is not able to calculate overstay rates accurately; because it relies on information from passenger manifests, persons entering by air or sea but exiting at a land port of entry may be mischaracterized as overstays.

Advocates of expanding the VWP contend that the 3% nonimmigrant visitor visa refusal rate criterion, which has been a significant barrier to entry into the VWP, should be replaced with the overstay rate, or the refusal rate threshold should be raised and used in conjunction with the overstay rate.

Some advocates have called for the return of the nonimmigrant visitor visa refusal rate waiver, which was available from October 2008 to July 2009. The waiver allowed DHS to admit into the VWP countries that had met all of the security requirements if they had a low overstay rate and a declining nonimmigrant visitor visa refusal rate that was below 10% in the previous fiscal year. Due to this waiver, eight countries that otherwise would not have qualified for the VWP were added in 2008. For current aspiring VWP countries, a complicating factor is that the Secretary of Homeland Security's authority to waive the nonimmigrant visitor visa refusal rate is suspended until the airline passenger exit system is able to match an alien's biometric information with relevant watchlists and manifest information .

In FY2018, all the VWP countries had DHS-estimated overstay rates of less than 0.5% (Poland, which had not yet been admitted to the VWP, had a DHS-estimated overstay rate of less than 1%). The worldwide DHS-estimated overstay rate for non-VWP countries in FY2018 was 2%. Figure 2 shows the most recently available nonimmigrant visitor visa refusal rates and the DHS-estimated overstay rates for selected aspiring VWP countries. All of these countries (except Brazil) had a nonimmigrant visitor visa refusal rate of less than 10% in FY2019, and all of them had a DHS-estimated overstay rate of less than 2% in FY2018.

Since the establishment of the VWP, the number of participating countries has been increased several times and two countries have been removed. The United Kingdom was the first country to be admitted, in July 1988, followed by Japan in December of the same year (see Figure 3 ). Six countries were added in 1989. An additional 13 countries were admitted in 1991, and another eight countries joined from 1993 to 1999. There was a gap until 2008, when another eight countries were admitted. In the past 10 years, Chile, Greece, Taiwan, and, most recently, Poland have been added. Adding countries to the VWP is done through bilateral negotiations, and membership is often perceived as evidence of close ties with the UnitedÂ States. Argentina and Uruguay are the only two countries that have been removed from the program, in 2002 and 2003, respectively.

Since 2010, DHS has admitted four countries into the VWP ( Figure 3 ). Many other countries would like to join the program to make it easier for their nationals to travel to the United States. In 2005, the George W. Bush Administration began providing countries interested in joining the VWP with road maps to aid them in meeting the program's criteria. The original 13 aspiring countries were Bulgaria, Cyprus, Czech Republic, Estonia, Greece, Hungary, South Korea, Latvia, Lithuania, Malta, Poland, Romania, and Slovakia. Of these, 10 have since been admitted. This report examines a selected list of aspiring VWP countries: Argentina, Brazil, Bulgaria, Croatia, Cyprus, Israel, Romania, and Uruguay (see Figure 1 ).

Four currently aspiring countriesâBulgaria, Croatia, Cyprus, and Romaniaâare in the European Union (EU). They are the only EU countries not in the VWP. U.S. citizens are permitted to travel to all the EU member states for short-term business or tourism purposes without a visa, whereas citizens of the four EU countries outside the VWP need a visa to travel to the United States. The European Commission has pointed out that the United States is the only country on the EU's visa-free list that does not fully reciprocate, adding that "visa reciprocity is a fundamental principle of the European Union's common visa policy." The European Union considered suspending its visa waiver for U.S. nationals in 2017, but decided not to do so.

Israel has also been vocal about wanting to enter the VWP, but it has faced challenges meeting certain criteria. For instance, Israel's Biometric Database Law prohibits sharing fingerprint data with foreign authorities, though reportedly the United States and Israel came to an agreement to share data for those with a criminal background. Another hurdle for Israel is that to become a VWP member, foreign countries must treat all American visa applicants equally; however, Israel has been accused of discriminating against Arab Americans. Moreover, Israel has yet to meet the 3% nonimmigrant visitor visa refusal rate criterion; its rate was 5.33% in FY2019.

Brazil is often included in reports about aspiring VWP countries. It has recently made changes to its visa policy for U.S. citizens. In June 2019, Brazil introduced visa-free entry for U.S. citizens and citizens of three other countries, reportedly to stimulate tourism.

A country can be terminated from the program if the Secretary of Homeland Security, in consultation with the Secretary of State, determines that a country's participation in the VWP undermines U.S. law enforcement, including immigration enforcement.

Argentina and Uruguay are former members of the VWP. Argentina joined in 1996, but the United States removed it in 2002 after poor economic conditions in the country led to an increase in the number of Argentine nationals entering the United States without visas and remaining illegally past the 90-day period of admission. Uruguay joined in 1999, but it was removed in 2003 because a recession led to an increasing number of Uruguayan citizens entering the United States under the VWP to live and work illegally.

National security is a key goal of the VWP. Over the years, Congress has continued to add security criteria for VWP participation. One of the VWP's most significant security additions was ESTA, which was put in place in 2009 and is administered by DHS. In addition, several laws require VWP partner countries to share information with the United States and to set standards for travel documentation. Nevertheless, debate remains as to whether the VWP sufficiently vets individual travelers prior to arrival at a U.S. port of entry.

Before traveling to the United States, a VWP traveler must submit biographical information through DHS's ESTA. This web-based application checks the traveler's information against relevant law enforcement and security databases and determines eligibility for travel under the VWP. ESTA alerts the foreign national whether he or she has been approved to travel. If not approved, the individual must obtain a visa prior to coming to the United States. This normally involves making an appointment for an interview with a U.S. consular official, a process that could delay the individual's departure for the United States.

ESTA became fully operational for all VWP visitors traveling to the United States by airplane or cruise ship on January 12, 2009. Prior to the implementation of ESTA, the first time a foreign national traveling under the VWP to the United States was screened was after checking in for a flight to the United States at a foreign airport. Under the current system, at the time a foreign national submits an ESTA application (at least 72 hours before travel), he or she is screened against a number of security databases, including the Terrorist Screening Database; TECS (not an acronym), a system used by U.S. Customs and Border Protection officers to screen arriving travelers to the United States; the Automated Targeting System; and INTERPOL's Lost and Stolen Passport database. Appendix B offers an explanation of these systems and databases.

An ESTA authorization is generally valid for multiple entries over a period of two years. Throughout this period, the ESTA system continually vets approved individuals' information against these databases. DHS can immediately revoke an ESTA approval if new derogatory information is discovered. In addition, the validity period can be shortened at any time for any reason. ESTA only screens against biographical security databases; VWP travelers do not submit biometric information (e.g., fingerprints and photographs) until they reach a U.S. port of entry, at which point their biometrics are run through multiple security databases.

Notably, a determination under ESTA that a foreign national is eligible to travel to the United States does not constitute a determination that the individual is admissible. The foreign national may still be deemed inadmissible and denied entry by CBP inspectors upon arrival at a U.S. port of entry.

Travelers who use ESTA pay a $14 fee, which was instituted in September 2010. The fee includes $4 to cover the costs of administering ESTA and $10 for the travel promotion fee established by Congress in the Travel Promotion Act of 2009. In December 2019, the Further Consolidated Appropriations Act of 2020 directed that the ESTA fee be raised to $21 (see section on " The VWP and U.S. Travel Promotion Efforts "). This fee increase has not been put into effect.

Although there tends to be agreement that the VWP benefits the U.S. economy by facilitating tourism ( see section on " U.S. Travel and Tourism Economy ") , disagreement exists about VWP's effect on national security. The VWP contains provisions that affect national security at two levels: country-to-country security agreements and individual traveler security screening.

To participate in the VWP, countries must agree to share extensive information with the United States about lost passports, known and suspected terrorists, and serious criminals. Since 2015, the Secretary of Homeland Security had been authorized to immediately suspend a country's participation in the VWP if the country fails to provide information related to security threats.

The VWP also sets standards for participating foreign countries' passports, visas, and border security. As previously mentioned, VWP countries must issue biometric e-passports and tamper-resistant, machine-readable visa documents. Furthermore, since December 2017, DHS requires VWP countries to use U.S. counterterrorism information to screen travelers crossing their borders and to implement certain aviation security measures.

Moreover, foreign countries' participation in the VWP allows the United States to monitor their border operations. Since 2002, DHS is statutorily obligated to assess and report on VWP countries' compliance with VWP criteria every two years. Thus, to remain in the program participating countries are subject to regular audits of their security operations, which include "rigorous and thorough inspection of airports, seaports, land borders, and passport production/issuance facilities as well as continuous monitoring." According to DHS, "no other program enables the U.S. Government to conduct such broad and consequential assessments of foreign partners' border security operations."

The possibility of joining the VWP is an incentive for aspiring VWP countries to share such information and improve their border security. According to DHS, "many countries not in the VWP complete program requirements in the hope of joining the program." For participating countries that wish to remain in the VWP program, DHS contends that "VWP requirements provide our allies with the impetus to implement security measures that can sometimes be politically challenging for them, like amending legislation and updating their data privacy frameworks."

The vetting of VWP travelers contains some features absent from the traditional screening required to receive a nonimmigrant visitor visa for business and tourist travel. As previously mentioned, ESTA screens the data of those authorized for VWP travel on a daily basis throughout ESTA's two-year validity period; new derogatory information could result in a denial of ESTA authorization. In contrast, many nonimmigrant visitor visas are valid for 10 years and are not continuously vetted. Moreover, travelers entering under the VWP must present e-passports, which tend to be more difficult to alter than other types of passports.

VWP travelers do not undergo the same screening required of travelers from most countries to receive a nonimmigrant visitor visa, which typically includes a personal interview with a U.S. consular officer. As such, VWP travelers' first face-to-face encounter with U.S. officials could be at a port of entry. Additionally, ESTA is a name-based system and cannot be used to run checks against databases that use biometrics, such as the Automated Biometric Identification System and Next Generation Identification. However, when VWP travelers enter the United States, CBP takes their fingerprints and photographs and checks them against these biometric systems. Finally, visitor visa applicants are required to submit social media identifiers, but this is optional for VWP travelers.

Another concern, following a number of high-profile terrorist attacks in Europe in recent years perpetrated mainly by European citizens, has been the possible threat posed by nationals from VWP countries who are aligned with the Islamic State. A focus had been on radicalized citizens of VWP countries who could have fought in the Middle East for the Islamic State or other terrorist groups. Conceivably, these individuals may have been able to travel to the United States under the VWP if there was no derogatory information about them in U.S. biographic databases. In response, Congress passed the Visa Waiver Program Improvement and Terrorist Travel Prevention Act, enacted as part of the FY2016 Consolidated Appropriations Act. This makes citizens of VWP countries ineligible for admission to the United States under the VWP if they are dual nationals of the Democratic People's Republic of Korea, Iran, Iraq, Sudan, or Syria or had been present in any of those countries, or in Libya, Somalia, or Yemen, at any time on or after March 1, 2011 (with limited exceptions). These individuals can still apply for a visa to travel to the United States.

Another point of contention is whether the VWP threatens the United States' immigration enforcement interests. As of December 2017, VWP countries that have an overstay rate of over 2% must initiate a public information campaign to educate their citizens about the conditions for admission to the United States. If this does not reduce overstay violations, a country could be removed from the program, as occurred with Argentina and Uruguay in 2002 and 2003, respectively.

A principal objective of the VWP is to boost the U.S. travel and tourism sectors by encouraging travel from high-volume and low-risk countries to the United States. The number of international visitors arriving in the United States totaled 79.3 million in 2019, down slightly from a record high of 79.7 million in 2018. Because of the sharp decline in international travel in the wake of the COVID-19 pandemic, many international flights have been cancelled and visitor volume is likely to fall sharply in 2020.

In 2018, the travel and tourism sectors accounted for 2.9% of U.S. gross domestic product, a larger share than many other industries, including agriculture, mining, or utilities, and they directly and indirectly employed 9.2 million workers.

Every dollar international visitors spend in the United States counts as an export. Collectively, foreign visitors spent about $256 billion in 2018 on domestic passenger fares aboard U.S. airlines and on travel-related goods and services, which makes tourism the United States' single-largest services sector export. Every year since 1989, the U.S. travel and tourism industries have posted a trade surplus, which in 2018 was $69.6 billion. Travel- and tourism-related exports accounted for 31% of all U.S. services exports and 10% of total exports in 2018.

Each overseas visitor spends, on average, about $4,200 per trip in the United States on travel activities such as shopping, lodging, dining, and sightseeing. According to the Bureau of Economic Analysis (BEA), international travelers account for a disproportionate amount of all travel and tourism spending in the United States. One reason for this is that international visitors have relatively longer stays than domestic visitors, spending, on average, 18 nights in the United States.

Travelers from VWP countries are among the highest in spending and visitor volume (see Table 1 ). However, an increasing number of overseas visitors come from non-VWP countries, notably China, Venezuela, Brazil, and India. Combined, these four non-VWP countries accounted for nearly 6.7 million visitors to the United States in 2019, down 4% from a year earlier. Travelers from these countries spent more than $5,000 on average per trip during their visits to the United States, with visitors from China leading in country-level travel spending. Spending in the United States by visitors from large source markets has risen substantially in recent years, up 45% from China and 78% from India since 2013.

Global Competitiveness of the U.S. Travel and Tourism Sectors

Although the number of foreign visitors to the United States has continued to rise, the U.S. share of total global tourism arrivals declined from 6.4% in 2015 to 5.7% in 2017, the most recent year for which statistics are available. One reason for this declining market share is that it is now much easier for travelers to visit many parts of the world, including Asia and Africa, compared to a few years ago.

In 2012, the Obama Administration established a Task Force on Travel and Competitiveness, which set a goal of welcoming 100 million international visitors in 2021. Among other things, the task force recommended expediting visa processing for tourists from certain emerging economies, such as China and Brazil, and adding countries to the VWP in order to encourage tourism. Before the advent of the global pandemic (COVID-19) in 2020, the U.S. government had forecasted that the volume of tourist arrivals would not meet the task force's goal, with the number of total international visitors to the United States expected to reach close to 82.9 million in 2021. It is too early to know what the repercussions of shutting down a significant share of overseas travel to the United States may mean for the U.S. travel and tourism industries. Current indications suggest that the stated goal in overseas travelers to the United States is beyond reach by 2021 as potential visitors modify their travel plans.

Economic Impact of Visitors from VWP Countries

Determining whether the VWP has directly led to increased travel to the United States is not straightforward because many factors affect international travel, including general economic conditions, currency exchange rates, and even the nature of bilateral relations. Nevertheless, the VWP could be a factor that has encouraged more visits to the United State because it arguably reduces uncertainty, inconvenience, and costs associated with a visa application.

Of the 37 nations in the VWP as of 2012, all but 10 recorded an increase in the volume of tourists and business visitors to the United States from FY2013 to FY2018. Three-fourths of the top 20 countries by number of VWP visitors recorded double-digit growth rates in VWP admissions over this period, including Taiwan, South Korea, Spain, and New Zealand, although the annual change for VWP countries has been uneven. Germany, Austria, Switzerland, and Japan are among the 20 VWP countries that posted drops in U.S. VWP admissions between FY2013 and FY2018 (see Table 2 ).

Economic Impact of Adding New Countries to the VWP

U.S. Travel, an advocacy group for the travel industry, has produced several analyses of the effects of adding countries to the VWP. All of the organization's reports conclude that adding new countries to the program would yield positive results. For example, in a 2014 report U.S. Travel estimated that if Brazil, Bulgaria, Croatia, Israel, Poland, Romania, and Uruguay were included in the program, annual visitation from those countries would increase by more than 500,000, adding $5.3 billion per year to the U.S. economy and supporting 31,600 additional jobs in the United States. Likewise, an economic analysis of U.S. Department of Commerce data on travel and tourism from 1980 to 2013 found that the VWP had a "meaningful impact driving increases in U.S. tourist volumes." In a 2019 report, U.S. Travel predicted that over the first three years of Poland's participation in the VWP, travel spending by Polish visitors to the United States would increase by $312 million, the number of Polish arrivals would rise by 97,000, and visitors from Poland would support 4,200 American jobs.

Visitors from the four non-VWP EU countries (Bulgaria, Croatia, Cyprus, and Romania), who currently enter the United States on nonimmigrant visitor visas, accounted for approximately 1% of total EU visitor spending in the United States in 2018 (approximately $580 million). This seems to suggest that the overall economic effect of adding these four countries to the VWP would likely be relatively small. According to an estimate by U.S. Travel, the number of arrivals in the United States from these countries would increase by nearly 73,000 visitors at the end of the first three years after joining the VWP. In a separate report, U.S. Travel projected that if Romania were to become a VWP country, annual arrivals from the country would increase by 38,000 and bring $128 million in additional travel spending to the United States. Both reports were prepared before the COVID-19 pandemic interrupted international travel in 2020.

According to figures from the Department of Commerce spending by Israeli visitors in 2018 in the United States on passenger fares and travel-related goods and services was nearly $1.8 billion. U.S. Travel estimated in 2019 that if Israel were admitted to the VWP, an additional 450,200 Israeli travelers would visit the United States over a three-year period, generating $1.2 billion in travel spending.

The U.S. travel and tourism industries support expanding the VWP to other countries, especially populous countries such as Brazil. Brazil was the fifth-largest tourism source market for the United States, with 2.1 million Brazilians visiting in 2018. As shown in Table 1 , average spending per Brazilian visitor to the United States was $5,200 in 2018, among the highest of all source countries. The number of visitors from Brazil is projected to reach 2.6 million by 2024 even if Brazil is not admitted to the VWP. In November 2019, the United States announced that Brazil will soon join the Global Entry program, which will reduce waiting time for approved Brazilian visitors arriving at U.S. airport immigration checkpoints.

The VWP is closely related to the promotion of foreign tourism to the United States. The United States no longer has a central agency to promote travel to it; the National Travel and Tourism Office (NTTO), within the International Trade Administration of the U.S. Department of Commerce, mainly provides official tourism statistics. Travel promotion is the responsibility of Brand USA (formally known as the Corporation for Travel Promotion), a nonprofit public-private entity that also is charged with communicating U.S. visa and entry policies to overseas visitors. Brand USA was established under the Travel Promotion Act of 2009 ( P.L. 111-145 ) and began operations in May 2011. In addition to private funding, since 2010 Brand USA has received $10 of the $14 fee paid by each prospective visitor from a VWP country who requests approval to travel to the United States through ESTA. In 2019, Congress approved raising the ESTA fee from $14 to $21, while reducing the amount available to Brand USA to $7 per traveler. Of the remainder, $4 will continue to go to CBP to cover the costs of administering ESTA, and $10 will be directed to the U.S. Treasury for the general fund. The effective date of the new ESTA fee has not yet been announced.

Brand USA is not without controversy. The Trump Administration's FY2021 budget called for ending the federal grant that matches the private sector contributions to Brand USA and making the revenue available to the U.S. Treasury to reduce the federal deficit. Brand USA remains controversial among other travel and tourism stakeholders too, with some critics asserting that promotion of tourism should be left to the private sector. For example, Airlines for America, an airline industry group representing U.S. carriers, opposed Brand USA's reauthorization, asserting that ESTA funds would be better spent by CBP on border security, vetting travelers and refugees, and modernizing entry and exit processes.

In another effort to promote travel and tourism, the United States has indicated that it is considering rejoining the United Nations' World Tourism Organization (UNWTO), which was established in 1975 to promote tourism worldwide. The United States was one of its founding members, but withdrew in 1996 after Congress stopped funding the United States Travel and Tourism Administration. In June 2019, the Trump Administration announced that the United States may rejoin the UNWTO. The announcement met with some criticism, and the Administration has subsequently taken no action. Other countries with large travel and tourism sectors that are not members of the UNWTO include the United Kingdom, Canada, and Australia.

Proposals introduced in the 116 th Congress would give DHS greater flexibility to admit countries into the VWP that do not meet the criteria discussed above. Representative Mike Quigley introduced the Jobs Originated through Launching Travel (JOLT) Act ( H.R. 2187 ) , which would reinstate DHS's authority to grant a waiver for the nonimmigrant visitor visa refusal rate. That bill would also change the name of the VWP to Secure Travel Partnership. H.R. 1996 , also introduced by Representative Quigley, would solely rename the VWP to Secure Travel Partnership. Representative Dan Lipinski introduced the Allied Nations Travel Modernization Act ( H.R. 2946 ), which would allow countries to be designated into the VWP if, instead of a low nonimmigrant visitor visa refusal rate, they have a low visa overstay rate and agree to spend 2% of their gross domestic product on defense; according to the sponsor, the bill was drafted "to create an alternative pathway into the program for NATO nations like Poland." As noted above, Poland was recently designated into the VWP. In previous Congresses, numerous bills have been introduced to designate Israel and Hong Kong into the VWP.

Senator John Cornyn introduced the Humanitarian Upgrades to Manage and Assist our Nation's Enforcement (HUMANE) Act of 2019 ( S. 1303 ); among other provisions, it seeks to deter VWP overstays by amending the Immigration and Nationality Act's terms and conditions of admission for VWP travelers, the VWP waiver of rights, and the detention and repatriation of visa waiver violators.

The 116 th Congress also addressed the spending of ESTA funds. Senator Mike Enzi introduced the Responsibly Enhancing America's Landscapes Act ( S. 2783 ), which would establish the National Park Service Legacy Restoration Fund to help with the backlog of maintenance projects in national parks. This fund would be paid for by increasing the ESTA fee by $16, along with an increase in nonimmigrant visitor visa fees by $25 and a park fee increase of $5. The Further Consolidated Appropriations Act of 2020 ( P.L. 116-94 ), which passed in December 2019, extended the authority for Brand USA to receive fees from the VWP through the end of September 2027 and raised the ESTA fee (as described in " The VWP and U.S. Travel Promotion Efforts " section above). The private sector still must provide at least $100 million per year in in-kind contributions and cash to the Brand USA program in order for it to receive these federal funds.

Appendix A. Temporary Visitors to the United States for Business or Pleasure from Selected Aspiring VWP Countries

Appendix B. Selected Immigration Inspections Databases and Systems