Wisconsin Law Review Symposium Issue on the Restatement of the Law of American Indians

 Restatement as Aadizookaan

Matthew L.M. Fletcher

The Gargoyle

The goal of this Essay for the Wisconsin Law Review’s Symposium on the Restatement of the Law of American Indians is to develop a framework on the durability of this Restatement. The aadizookaanag are unusually durable in terms of their transmission of underlying, foundational lessons, but the stories change all the time. The earth diver story explores and describes the critically important connection between the Anishinaabeg and the creatures of Anishinaabewaki, but only at a very broad level of generality. How the Anishinaabe tribal government in the twenty-first century translates those principles into modern decision- making requires new analysis, new stories. Additionally, old aadizookaanag may fade into irrelevance, even disrepute, as times and conditions change.

Law is the same. Restatements are intended to be durable and persuasive, supported by the great weight of authority, but not permanent. There are provisions in the Indian law Restatement I believe are truly timeless, while the law restated in some sections is likely to change a great deal over the next few decades. I choose four sections in the Restatement and match each with one of the four directions sacred to the Anishinaabeg. The youngest direction, Waabanong, the east, is the most likely to change. The next youngest, Zhaawanong, the south, is older, but still subject to change. Niingaabii’anong, the west, is still older, wiser, less likely to change, but also very dark in its philosophies. Kiiwedinong, the north, is the oldest, wisest, and most durable, yet distant. A Restatement section includes blackletter law, law that is well-settled and indisputable. The reporters’ notes that accompany the blackletter law constitute the legal support for that statement of law. The stronger the legal support, the more durable the black letter.

In the east, I choose one of the plainest, easiest-to-restate principles of federal Indian law, the bar on tribal criminal jurisdiction over non- Indians. In the south, I choose the law interpreting the federal waivers of immunity allowing tribes to sue the United States for money damages. In the west, I choose the darkest, yet perhaps the most foundational, principles, the plenary authority of Congress in Indian affairs. For the north, I choose tribal powers, the oldest and most durable of all of the principles in the Restatement.

 Indian Sovereignty in Context

Diane P. Wood

Almost 200 years ago, in the Cherokee Nation cases, Chief Justice John Marshall famously described Indian tribes as “domestic dependent nations.” It’s a catchy phrase, but it falls far short of a clear description of the complex relationship between the Indian tribes, bands, nations, and similar groups in the territory encompassed by the United States and the government of that territory. It also elides the equally complex issue of the relationship between Indian tribes and the constituent states of the United States. In the end, the problem may be that modern notions of self- determination, integrity of national boundaries, and conquest simply do not map well onto the history of our part of the North American continent from the late fifteenth century to the present. The best we can do is to articulate rules, canons of interpretation, and principles from the law that has developed in the hope of clarifying and settling the law we now have.

No one could have undertaken that task with more sensitivity, expertise, and objectivity than the Reporters of the American Law Institute’s soon-to-be-published Restatement of the Law of American Indians—Professors Matthew L.M. Fletcher and Wenona T. Singel and Attorney Kaighn Smith, Jr. Indeed, this may have been one of the most challenging Restatements the ALI has ever undertaken. Most of the time, the common law (or interstitial law relating to a statute) has developed organically in the state and federal courts, and the job of the Reporters is to distill the rules that have emerged. This isn’t always easy, of course: sometimes no single rule floats to the top of the barrel, and so the Reporters must choose the one that seems best to represent the state of the law. Sometimes (though less often) the Reporters propose that the ALI adopt a minority position that is better reasoned or that seems to capture a trend of thinking.

 Right-of-Way Sovereignty

Brian L. Pierson

Effective April 21, 2016, the Department of the Interior adopted new right-of-way regulations at 25 C.F.R. Part 169 that fundamentally change the Department’s historical approach. While the Right of Way Act still requires that the BIA approve rights-of-way, the new rules reflect a reinterpretation of the federal government’s trust responsibility with respect to rights-of-way. Instead of the federal government continuing to retain virtually all regulatory authority and substituting its judgment for that of tribes, the rules explicitly support tribal decision-making and the exercise of tribal regulatory authority.

This Essay briefly reviews the history of rights-of-way through Indian country, describes the new paradigm adopted under the 2016 regulations, and suggests how tribes can harness that paradigm to strengthen tribal sovereignty and generate revenue.

 Who, What, Where, and How: The Fundamental Elements for Contracts Implicating Tribal Sovereign Immunity

Lorenzo E. Gudino

May the Fourth Be With You.

This Essay addresses the problems created by courts’ failure to spell out the exact parameters required for contractual provisions regarding tribal sovereign immunity. As a companion to the Restatement, this Essay seeks to develop a simpler framework to craft effective contract language for all tribes and their business partners to employ. Other articles offer model contractual provisions for waivers of tribal sovereign immunity. This Essay touches on these approaches and suggestions for drafting effective provisions. This Essay, however, takes a different approach by discussing the four key components of any tribal sovereign immunity contract provision with guidance from the Restatement. Like the foundational “five ‘W’s” of journalism, this Essay emphasizes four key questions contract drafters need to ask: Who is immune from suit? What is the tribe waiving or not waiving? Where will dispute resolution take place? How will enforcement of the provision or waiver occur? Each question is a fundamental element that effective contract provisions for tribal sovereign immunity require.

 Facilitating Tribal Co-Management of Federal Public Lands

Kevin K. Washburn

Each year Native American tribal nations enter hundreds of federal contracts worth billions of dollars to run federal Indian programs. By substituting tribal governments for federal agencies, these “self-determination contracts” have been enormously successful in improving the effective delivery of federal programs on Indian reservations. Tribal governments wish to do more, however. Tribes wish to co-manage federal public lands, including lands that lie outside their reservations, and they have a lot to offer in this area. For example, a tribe might seek to contract with the United States Fish and Wildlife Service to operate a wildlife refuge, with the National Park Service to manage a park or monument, or even with the Bureau of Reclamation to operate a federal dam. Tribes are natural partners for much of this work. Many federal units are located on lands that are, or were, tribal aboriginal lands. Although the federal government has had the legal authority to enter such contracts since 1994, federal agencies have been slow to enlist tribes in the management of federal public lands. A review of the few existing successful cases suggests that tribes confront dramatically different dynamics when seeking to contract functions with federal agencies beyond the Bureau of Indian Affairs, Indian Health Service, and other agencies providing services to Indian people. At a time when Indigenous-led conservation is crucial to addressing climate change and our national conservation goals, this Essay responds to calls by environmental advocacy organizations and tribes to examine the obstacles to tribal co-management of public lands and proposes solutions.

 Five Restatements: Charting the History of the Law on State Taxation of Non-Tribal Members in Indian Country

Dale T. White

Last fall I spoke at the Wisconsin Law Review’s Symposium on the Restatement of the Law of American Indians. My subject was Chapter 3, Section 30 of the Proposed Final Draft on the scope of state taxation of nonmember activity in Indian country. My focus was on two U.S. Supreme Court cases, Moe v. Confederated Salish & Kootenai Tribes and Washington v. Confederated Tribes of the Colville Indian Reservation, and how those decisions were driven in part by the fearmongering of aggressive state attorneys general. The fear being spread was of tribes and their members using sales tax exemptions to create tax havens that would damage state economies. The Proposed Final Draft rule, although accurately restating the law, was in my opinion an example of a result- driven Supreme Court decision that will now become blackletter law.

Afterwards, I soon discovered my thesis was not exactly earth- shattering. Many scholars and practitioners have commented over the years on the abject lack of legal reasoning in Moe and Colville, just as many have criticized Supreme Court Indian law jurisprudence as being based upon the Justices’ personal, ad hoc, and political views about what the law “ought to be” instead of what the law is. That a number of foundational principles of Indian law are grounded on prejudice, injustice, and colonial or neo-colonial beliefs is widely acknowledged. My friend Walter Echo-Hawk even wrote a book about it. It is no surprise that bad Indian law decisions might someday be turned into blackletter law.

Rather than retrace old ground, I shifted my focus to a broader examination of the origins of the Proposed Final Draft rule on state taxation of nonmember activity in Indian country and instead chart the history of the law and its impact on Indian reservation economic development. There has been a complete reversal of the law from its origin in 1832, when the Supreme Court made it very clear in Worcester v. Georgia that states have no authority at all within Indian country. In contrast, under the Proposed Final Draft rule, states have presumptive authority to tax nonmembers in Indian country subject to federal Indian law preemption analysis. My Essay would chart the history of the law to examine how this reversal occurred and how this may have been influenced by Moe and Colville. The change in the law would be illustrated by hypothetical “Restatements” of the law at points in time between 1832 and 2022, hence the title of the Essay: “Five Restatements.”

 Opportunities for On-Reservation Sustainable Development

John Clancy

With the combination of the federal government acting on its trust responsibility to provide tribes adequate funding and other tools and the advancement of clean energy technologies, tribes are well positioned to pursue cost-effective, sustainable on-reservation economic development. Among others, opportunities include the development of clean energy for tribal use and potential sale to the grid, development of microgrid and energy resiliency projects, development of tribal clean energy “virtual” utilities, the implementation of electric vehicle charging, and the development of economically and environmentally sustainable housing. The passage of the fiscal year 2021 federal budget, COVID relief legislation, and the Infrastructure Investment and Jobs Act, as well as the potential passage of at least portions of the Build Back Better Act and the promulgation of rules such as the Department of Interior (DOI) right-of- way regulations, combine with important, long-standing federal programs to provide a unique federal legislative and regulatory backdrop for tribes to pursue sustainable economic development.

 Protection and Implementation of Indian Reserved Water Rights as a Necessary Condition for Tribal Economic Development

Reid Payton Chambers

This Essay discusses the legal principles of Indian reserved water rights as determined by the courts and the history of how those rights have been enforced and implemented by tribes and the United States— Congress and the federal executive—which holds title to these rights intrust for the tribes. The Restatement Chapter on Indian Water Rights sets out these basic legal principles, which seem now well-established with commendable clarity.

 Toward Tribal Health Sovereignty

Aila Hoss

Although federal law defines Tribal sovereignty as the “right . . . [of Tribes] to make their own laws and be ruled by them,” Tribes have been exercising their sovereign powers since long before the establishment of the United States. For the purposes of this Essay, I discuss Tribal health sovereignty in the context of a Tribe’s ability to make, implement, and enforce its own health programs and policies based on its culture and values. Tribal health sovereignty must also include adequate oversight and accountability over federal Indian health obligations. This, of course, is just a snapshot of the ways in which a Tribe may exercise its health sovereignty. I argue that reforms in federal Indian health policy are essential to securing Tribal health sovereignty.

This Essay begins by briefly describing Tribal governments and their relationships with the federal government under federal law. It then describes the inherent authority of Tribes to engage in public health activities. Next, this Essay describes Indian health systems under existing law, arguing for more Tribal-driven health programming and highlighting the legal barriers to achieving this. This Essay concludes by making specific, concrete recommendations for reforms under federal law and describes how these reforms can promote Tribal health sovereignty.