Ann Tweedy has posted “Connecting the Dots Between the Constitution, the Marshall Trilogy, and United States v. Lara: Notes Toward a Blueprint for the Next Legislative Restoration of Tribal Sovereignty” on SSRN. This paper is forthcoming in one my favorite journals, the University of Michigan Journal of Law Reform. Here is the abstract:
This law review article examines: (1) the underpinnings of tribal sovereignty within the American system; (2) the need for restoration based on the Court’s drastic incursions on tribal sovereignty over the past four decades and the grave circumstances, particularly tribal governments’ inability to protect tribal interests on the reservation and unchecked violence in Indian Country, that result from the divestment of tribal sovereignty; (3) the concept of restoration as illuminated by United States v. Lara, and finally (4) some possible approaches to partial restoration.
The article first evaluates the constitutional provisions relating to Indians and the earliest federal Indian law decisions written by Chief Justice Marshall on the premise that these two sources shed light on the upper limits of a potential legislative restoration of tribal sovereignty. Next, the article examines the judicial trend of divestment of tribal sovereignty, focusing particularly on the latest decisions that evidence this trend. The article further examines the negative effects of this divestment in Indian Country, from impeding tribes’ ability to provide governmental services and to protect their unique institutions, to problems of widespread on-reservation violence, particularly against Indian women. The article concludes that the judicial trend of divesting tribal sovereignty combined with these dire effects clearly demonstrate a need for restoration. Finally, the article examines the Lara holding and its implications for the types of restoration that will be upheld by Court, concluding with an examination of options for potential legislative restorations.
This looks like a very interesting paper, and may be the first paper that digests the recent scholarship on the scope of the Indian Commerce Clause from Pommersheim, Natelson, and others.