legal history

New Paper Focuses on Double Taxation in Indian Country

Sarah M Donnelly

Link to article here.

Citation and abstract:

Croman, K. S., & Taylor, J. B. (2016). Why beggar thy Indian neighbor? The case for tribal primacy in taxation in Indian country. Joint Occasional Papers on Native Affairs (JOPNA 2016-1). Tucson, AZ and Cambridge, MA: Native Nations Institute and Harvard Project on American Indian Economic Development.

The law governing taxation in Indian country is a mess. The accretion of common law precedents and the general tendency of states to assert primacy over the taxation of non-Indians create absurd outcomes. This article makes the case three ways. The argument based on the law shows that particularized, fact-specific precedents create a thicket of rulings that impede business development. The argument based on facts shows that these impediments to economic development harm not only tribal economies, but state and local economies, too. And the argument based on just claims testifies to the fact that the current arrangement could hardly have emerged from the actions of willing and informed governments operating in good faith. To borrow from Adam Smith, states beggar their Indian neighbors, seeking fiscal gain to the tribes’ detriment and, ultimately, their own. We conclude by recommending actions to bring fairness and certainty to the law governing taxation in Indian country.

Fletcher & Singel on the Historical Basis for the Trust Relationship between the US and Indian Children

Matthew L.M. Fletcher2 Comments

Fletcher & Singel have posted “Indian Children and the Federal Tribal Trust Relationship” on SSRN.

Here is the abstract:

This article develops the history of the role of Indian children in the formation of the federal-tribal trust relationship and comes as constitutional challenges to the Indian Child Welfare Act (ICWA) are now pending. We conclude the historical record demonstrates the core of the federal-tribal trust relationship is the welfare of Indian children and their relationship to Indian nations. The challenges to ICWA are based on legally and historically false assumptions about federal and state powers in relation to Indian children and the federal government’s trust relationship with Indian children.

Indian children have been a focus of federal Indian affairs at least since the Framing of the Constitution. The Founding Generation initially used Indian children as military and diplomatic pawns, and later undertook a duty of protection to Indian nations and, especially, Indian children. Dozens of Indian treaties memorialize and implement the federal government’s duty to Indian children. Sadly, the United States then catastrophically distorted that duty of protection by deviating from its constitution-based obligations well into the 20th century. It was during this Coercive Period that federal Indian law and policy largely became unmoored from the constitution.

The modern duty of protection, now characterized as a federal general trust relationship, is manifested in federal statutes such as ICWA and various self-determination acts that return self-governance to tribes and acknowledge the United States’ duty of protection to Indian children. The federal duty of protection of internal tribal sovereignty, which has been strongly linked to the welfare of Indian children since the Founding, is now as closely realized as it ever has been throughout American history. In the Self-Determination Era, modern federal laws, including ICWA, constitute a return of federal Indian law and policy to constitutional fidelity.

Patty Ferguson-Bohnee on Indian Voting Rights in Arizona

Matthew L.M. Fletcher

Patty Ferguson-Bohnee has posted “The History of Indian Voting Rights in Arizona: Overcoming Decades of Voter Suppression,” which she published in the Arizona State Law Journal. Here is the abstract:

Native Americans “have experienced a long history of disenfranchisement as a matter of law and of practice.” This comes from a complicated and contradictory history of laws and policy that has recognized tribes as separate sovereigns, reduced tribal status to that of domestic dependent nations, sought to remove, relocate, or assimilate tribal citizens, terminated numerous indigenous nations, and has now moved to a policy of tribal self-government. Unfortunately, the right to vote for Arizona’s first people has only recently been achieved, and there are continuing threats to the electoral franchise.

Voter suppression has been used to discourage or prevent Indian people from voting in Arizona. Voter qualifications such as literacy tests were used to prevent Indians from participating in elections for approximately fifty years. Once Native Americans started voting, redistricting and vote dilution were used to reduce the effectiveness of the Native vote.

This article will review the history of Indian voting rights in Arizona. The author begins by reviewing the history of Native American voting rights and the history of voting discrimination against Native Americans in Arizona. The Voting Rights Act turned the corner for Native people to participate in the state and federal election processes. The article then discusses the current challenges faced by Native American voters and specifically discuss the voter ID law passed in 2004. The voter ID law is a roadblock that impedes full participation by all Arizona Indians. The last part of the article focuses on strategies to protect Indian voting rights. Notwithstanding the Supreme Court’s invalidation of the Section 5 coverage formula in Shelby County, tribes should consider proactive measures to ensure that tribal citizens can participate in elections.

Highly recommended.

New on the TT Bookshelf: John Low’s New Book on the Pokagon Band and the City of Chicago

Matthew L.M. Fletcher

Low Book

John Low has published “Imprints: The Pokagon Band of Potawatomi Indians and the City of Chicago” with Michigan State University Press (book page here).

From the website:

Imprints: The Pokagon Band of Potawatomi Indians and the City of Chicago
The Pokagon Band of Potawatomi Indians has been a part of Chicago since its founding. In very public expressions of indigeneity, they have refused to hide in plain sight or assimilate. Instead, throughout the city’s history, the Pokagon Potawatomi Indians have openly and aggressively expressed their refusal to be marginalized or forgotten—and in doing so, they have contributed to the fabric and history of the city.

Imprints: The Pokagon Band of Potawatomi Indians and the City of Chicago examines the ways some Pokagon Potawatomi tribal members have maintained a distinct Native identity, their rejection of assimilation into the mainstream, and their desire for inclusion in the larger contemporary society without forfeiting their “Indianness.” Mindful that contact is never a one-way street, Low also examines the ways in which experiences in Chicago have influenced the Pokagon Potawatomi. Imprints continues the recent scholarship on the urban Indian experience before as well as after World War II.

“Chemawa Indian School unmarked graves”

Matthew L.M. Fletcher

From aljazeera here.

Nebraska v. Parker Background Materials

Matthew L.M. Fletcher3 Comments

Here are the materials we’ve collected on Nebraska v. Parker.

Supreme Court Merits Briefs

Nebraska Opening Brief

Omaha Tribal Council Brief

US Brief

Merits Stage Amicus Briefs

Village of Hobart Amicus Brief

NCAI Amicus Brief

Scholars Brief

Cert Stage Briefs

State of Nebraska v Parker cert petition

United States Cert Opp Brief

Eighth Circuit Materials

CA8 Opinion

Nebraska Opening Brief

Tribe Brief

US Brief

Nebraska Reply Brief

District Court Materials

The 2nd amended complaint is here: Complaint

The tribal motion to dismiss is here: Motion to Dismiss

The opposition is here: Opposition to Motion to Dismiss

The reply is here: Reply Brief

The court’s stay order and opinion is here: DCT Order Denying Motion to Dismiss

DCT Order Granting Nebraska Motion to Intervene

Nebraska Motion to Intervene

Opposition to Motion to Intervene

Nebraska Reply in Support of Motion to Intervene

118 Village of Pender Brief

114 Omaha Tribe Brief

127 Federal Brief

126 Nebraska Brief

134 Nebraska Response

135 US Response

136 Village of Pender Response

138 Omaha Tribe Response

140 Opinion

Tribal Court

Village of Pender v Morris — Omaha Tribal Court

“Native American culture feels effects of boarding schools decades after system closed”

Matthew L.M. Fletcher

Here, from the Grand Traverse Record-Eagle.

Seattle U. School of Law Field Trip to the Elwha River

Ann Tweedy

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Here are some pictures from Sunday’s Seattle U. field trip to view the progress of the Elwha River’s restoration. The trip was led by Robert Elofson, Director of the River Restoration Project for the Lower Elwha Tribe. It was part of a class on the restoration of the River after the removal of the two dams, which is taught by Professors Catherine O’Neill and Eric Eberhard. What lucky students to have the chance to examine the mechanics of a tribal triumph like this one and then to see the on-the-ground evidence firsthand!

Alanis Obomsawin’s film “Trick or Treaty” now available for rental

Ann Tweedy2 Comments

This is an incredible film about the treatment of treaties and Native peoples in Canada. It’s now available for rental from Canada’s National Film Board. I saw it at the NAISA conference this June and highly recommend it. It is extremely sad and disturbing at times but also incredibly inspiring.

Documentary on French v. Starr — Dispute over Tribal Jurisdiction at Colorado River Indian Reservation

Matthew L.M. Fletcher1 Comment

Here is a documentary on CRIT’s eviction of squatters on the California side of its reservation. http://www.cctv-america.com/2015/05/08/the-guardians-of-the-mojave-desert. This issue was the subject of the lawsuit in French v. Starr which Turtle Talk covered. This documentary provides readers with the context behind that lawsuit