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.
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.
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.
In 2010, Michael reached out to me and asked me if I wanted to be a member of the American Law Institute. I had never met the man, but he wanted to enable junior scholars from underprivileged backgrounds to become a part of the ALI. Barely knowing what the ALI was, I agreed. Within the next couple years, Wenona Singel and I were spearheading a restatement project and dragging along people like Venus Prince and Keith Harper to help us.
Over the years, Michael continued to elevate my work. When he became President of the American Association of Law Schools, he asked me to join the empirical research committee.
Michael added me to his rock and roll posse, where he discussed rock music and the law amongst friends. His emails were always a welcome respite from work, though they were frighteningly incisive on the law. Another time, he hosted me and our son Owen in Santa Fe for dinner, remarking that he could tell Owen’s parents were both lawyers; as a small boy, he already knew how use lawyer words like “actually” and how to hedge his opinions.
In 2020, when the Indigenous Law and Policy Center won the M. Shanara Gilbert Human Rights Award from the Society of American Law Teachers, Michael gave us the award and spoke about the restatement project. He was far too kind, generous, and inspirational.
Michael was such a good guy. It’s amazing how gracious and generous people can be. I’m glad I could get it together to wish him a good journey in time.
We begin by discussing the tribal exhaustion doctrine involved in this case. “[W]hen a federal court has subject-matter jurisdiction over a claim arising in Indian country over which a tribal forum has colorable jurisdiction, principles of comity and the federal policy of promoting tribal self-government generally require that the plaintiff fully exhaust tribal remedies before proceeding in federal court.” Restatement of the Law of Am. Indians § 59 cmt. a (Am. Law Inst., Proposed Final Draft 2021).
slip op. at 14.
Maybe a little more Restatement. . . .
Post–Santa Clara Pueblo, federal review has been limited to habeas, leaving tribal courts to adjudicate any other civil rights claims. See Restatement of the Law of Am. Indians § 16 cmt. a (“With the exception of actions for habeas corpus relief [under § 1303, ICRA’s civil rights] guarantees are enforceable exclusively in tribal courts and other tribal fora.”).
slip op. at 21.
And more. . . .
Tribal exhaustion doctrine exists to preserve tribal sovereignty and prevent the federal courts from running roughshod over tribal legal systems. See Norton, 862 F.3d at 1243; Restatement of the Law of Am. Indians § 28 cmt. a (“[A]djudication of matters impairing reservation affairs by any nontribal court . . . infringes upon tribal law-making authority, because tribal courts are best qualified to interpret and apply tribal law.”).