New Papers on Tribal Federalism, Native Voting Rights, and Bay Mills

Please take a look:

Tribal Disruption and Federalism
This paper is prepared for the 2014 Honorable James R. Browning Symposium hosted by the Montana Law Review (2015 Forthcoming)
Matthew L. M. Fletcher
Michigan State University College of Law
Abstract:

The very presence of Indian nations within the borders of the United States and its territories has always been, from the Founding, disruptive. Indian nations are disruptive, but as I will argue, they are disruptive in the best possible manner. This paper will describe several ongoing tribal-state disputes throughout the nation, acknowledging that the tribal claims are disruptive, but that tribal disruption is not inherently harmful.

Native Voting Rights
This short paper is prepared for the University of Texas/Mexican Electoral Tribunal Workshop (September 5-6, 2014).
Matthew L. M. Fletcher
Michigan State University College of Law
Abstract:

American Indians’ status as citizens of federal, state, and tribal nations has been riddled with ambiguity since the Founding of the American Republic. This short paper surveys the history and law of Native political rights in the American constitutional structure before concluding with a discussion about special problems in tribal elections.

Rights Without Remedies
Matthew L. M. Fletcher
Michigan State University College of Law
Abstract:

In Michigan v. Bay Mills Indian Community, the Supreme Court issued a critically important decision on tribal sovereign immunity denying Michigan a forum to enforce its alleged rights under the Indian Gaming Regulatory Act and under state law. The decision reminds me of Oklahoma Tax Commission v. Citizen Potawatomi Nation, where the Court held that Oklahoma could tax tribal smokeshops, but could not sue the tribe to force remittance of the tax revenue. And so for the second time in recent decades, the Court issued a decision that a state had a right under federal Indian law that was unenforceable against an Indian tribe due to sovereign immunity – in other words, a right without a remedy.

The Supreme Court’s primary reasoning in the Bay Mills matter directly focuses the resolution of these kinds of disputes on Congress. Bay Mills did not simply reaffirm tribal immunity – the Court strongly reaffirmed something known as the clear statement rule. The reaffirmation of the clear statement rule could impact many areas of tribal governance beyond tribal sovereign immunity, including labor relations, treaty rights, tribal court jurisdiction, and of course Indian taxation. This paper parses out where the clear statement rule can by utilized by tribal interests for maximum effect, and where reliance upon the rule could generate signals to Congress.

I conclude by identifying the logical outcome of reliance upon the clear statement rule – Congressional reconsideration of tribal immunities. Indian country’s focus on litigation may be forced to give way to the legislative arena. There, tribal interests may be confronted with the rhetoric of rights without remedies.