New Scholarship by Mary Bilder on Native Nations’ Diplomacy and the Framing of the Constitution

Mary Sarah Bilder has posted “Without Doors: Native Nations and the Convention,” just published in the Fordham Law Review.

Here is the abstract:

The Constitution’s apparent textual near silence with respect to Native Nations is misleading. As this Article reveals, four representatives of Native Nations visited Philadelphia in the summer of 1787. Their visit ensured that the Constitution secured the general government’s treaty authority with Native Nations and decisively barred state claims of authority. But, the visits also threatened to disrupt Congress’s passage of the Northwest Ordinance and the vision of nationally sanctioned white settlement. In the process of successfully preventing the representatives from reaching Congress, Secretary at War Henry Knox developed the central tenets of what would become the George Washington administration’s early Indian policy: an acceptance of Native Nation sovereignty, disapproval of unauthorized white encroachment, and an attempt to discourage Native Nations from sending additional representatives. In addition to emphasizing the strong national federal government role and Native Nation sovereignty, this history provides evidence that the Framers’ generation without doors—outside the Convention—critically affected the creation of the Constitution as an instrument and a system of government. Recovering the visits of the deputies to Philadelphia in 1787 and the promises they received, including Washington’s handshake, suggests that the United States today should reaffirm the right and the importance of Native Nations sending deputies to Congress.

American Indian Law Review Vol. 45, Issue 1


Vol. 45, No. 1 (2020-2021)

Front Pages   PDF


ICWA’s Irony – Marcia Zug   PDF


The Secretary of the Interior Has the Authority to Take Land into Trust for Federally Recognized Alaska Tribes – Meghan O’Connor   PDF

“The Desert Is Our Home” – Kayla Molina   PDF


Coeur D’alene Tribe v. Hawks: Why Federal Courts Have the Power to Recognize and Enforce Tribal Court Judgments Against Nonmembers “Because of the Federal Government’s Unique Relationship with Indian Tribes” – Heath Albert   PDF

The Disproportionate Effect on Native American Women of Extending the Federal Involuntary Manslaughter Act to Include a Woman’s Conduct Against Her Child in Utero: United States v. Flute – Andie B. Netherland   PDF

Special Feature

Mirrored Harms: Unintended Consequences in the Grant of Tribal Court Jurisdiction over Non-Indian Abusers – Jonathan Riedel   PDF

Kristen Carpenter’s Book Review of McNally’s “Defending the Sacred” in the Harvard Law Review

Kristen A. Carpenter has published “Living The Sacred: Indigenous Peoples and Religious Freedom” in the Harvard Law Review, reviewing Michael McNally’s “Defend the Sacred: Native American Religious Freedom Beyond the First Amendment.”

New Scholarship on Substantial Burdens on Native Religious Exercise

Joel West Williams and Emily deLisle have posted “An ‘Unfulfilled, Hollow Promise’: Lyng, Navajo Nation, and the Substantial Burden on Native American Religious Practice,” forthcoming in the Ecology Law Quarterly, on SSRN. Here is the abstract:

Many Native American religious practices are linked to sacred sites – places in the natural world that have been used for ceremonies and rites since time immemorial. Often, particular ceremonies and rituals can only be performed at these locations. Many such sacred sites are located on what is, today, public land owned by federal government. The government has at times desecrated, destroyed, or barred access to sacred sites, rendering Native religious exercise extremely difficult or impossible.

The Religious Freedom Restoration Act (RFRA) was enacted to provide an alternative source of protection for religious exercise in the wake of Employment Division v. Smith’s restrictive interpretation of the Free Exercise Clause. RFRA provides that a government measure that “substantially burden[s]” a person’s exercise of religion will be subject to strict scrutiny. The statute has been successfully invoked by litigants against the government in a wide variety of cases. However, Native American litigants seeking protection for sacred sites located on public lands have been mostly unable to rely on RFRA’s protection. This is in large part because courts have mistakenly interpreted RFRA’s “substantial burden” requirement as incorporating Free Exercise jurisprudence, which has arbitrarily excluded most sacred sites claims from heightened scrutiny simply because the sites were located on public lands. Native Americans are thus denied the same level of religious free exercise that is enjoyed by other groups.

This article illustrates why this overly narrow interpretation of RFRA’s “substantial burden” requirement is erroneous. It demonstrates that courts, especially the Ninth Circuit, have construed “substantial burden” in a manner that is inconsistent with fundamental principles of statutory interpretation, with RFRA’s purpose, and with the Supreme Court’s own reasoning in recent cases including Burwell v. Hobby Lobby and Holt v. Hobbs. We highlight how courts applying this prevailing interpretation reach the absurd conclusion that government actions that erase sacred sites and destroy practitioners’ ability to worship do not constitute a “substantial burden” upon religious exercise.

The article then proposes an alternative textualist, plain-meaning understanding of RFRA’s substantial burden requirement which corrects these serious errors while requiring courts to appropriately weigh sacred sites claims against countervailing government interests – realizing RFRA’s promise of equal and meaningful religious freedom for Americans of all faiths.

New Scholarship Defending Non-Lawyer Judges and Advocates in Tribal Justice Systems

Judith M. Stinson, Tara Mospan, and Marnie Hodahkwen have posted “Trusting Tribal Courts: More Lawyers is Not Always the Answer” on SSRN. The paper is forthcoming in the Law Journal for Social Justice at ASU.

The abstract:

Many outsiders distrust tribal courts because they assume they will be treated unfairly. This distrust creates a number of problems, including decreasing the effectiveness of tribal judicial systems, inhibiting tribal economic development, and ultimately undermining tribal sovereignty. Critics of tribal courts assert three main justifications for their structural skepticism: first, that tribal courts are “different” from other court systems in the United States; second, that tribal laws and traditions seem foreign and may be difficult to access; and third, that because the qualifications for judges and practitioners in tribal courts sometimes differ from those in other courts, tribal judges and advocates are inferior. Drawing on other scholarship, this article briefly responds to the first two criticisms. This paper then argues that non-lawyer judges and lay advocates can be as effective as law-trained judges and advocates in other court systems. Although it is impossible to eliminate all outsider bias, refuting the claimed justifications should demonstrate that tribal courts are as fair and as competent as non-tribal courts. Therefore, greater confidence in tribal courts is warranted.

The Regulatory Review [Penn.] Series: “Native Peoples, Tribal Sovereignty, and Regulation”


The description:

For the first time in U.S. history, a Native American will lead a cabinet-level department in the U.S. federal government. Secretary of the Interior Debra Haaland now heads the federal agency primarily responsible for coordinating the U.S. government’s complex regulatory relationships with Native Nations.

These relationships are predicated on tribal sovereignty—tribes’ inherent authority to “make their own laws and be governed by them.” Accordingly, the United States is obligated to promote tribal self-determination and tribes’ ability to provide for the health and welfare of tribal citizens within tribal lands. Yet despite its formal recognition of a certain degree of Native sovereignty, the federal government has also exercised significant control over tribal peoples and lands. Throughout U.S. history, federal administrative bodies, such as the U.S. Department of the Interior, have often failed to uphold the promises and obligations of sovereignty adequately.

In this series of essays, scholars and practitioners explore some of the most pressing regulatory issues affecting how Native American communities experience government and law, as well as how existing systems of power ignore and exclude Native peoples and governments.

The Regulatory Review is thrilled to feature this series of essays highlighting the effects that regulation has on Native individuals and communities. The series’ contributors include: Maggie Blackhawk, University of Pennsylvania Law School; Emily deLisle, University of Pennsylvania Law School; Katherine Florey, University of California, Davis School of Law; Dylan R. Hedden-Nicely, University of Idaho College of Law; Hillary M. Hoffmann, Vermont Law School; Aila Hoss, University of Tulsa College of Law; Sarah E. Krakoff, University of Colorado Law School; Elizabeth Kronk Warner, University of Utah S.J. Quinney College of Law; Sarah Roubidoux Lawson, Schwabe, Williamson & Wyatt PC; Robert J. Miller, Arizona State University Sandra Day O’Connor College of Law;  Monte Mills, University of Montana Alexander Blewett III School of Law; Megan Powell, First American Title Insurance Company;  Ezra Rosser, American University Washington College of Law; Joe Sexton, Galanda Broadman PLLC; Judith A. Shapiro, Big Fire Law & Policy Group;  Jessica A. Shoemaker, University of Nebraska College of Law; and Ann E. Tweedy, University of South Dakota School of Law.

Alex Skibine on Textualism and the Indian Canons of Statutory Construction

Alexander Tallchief Skibine has posted “Textualism and the Indian Canons of Statutory Construction,” forthcoming in the University of Michigan Journal of Law Reform, on SSRN.

Here is the abstract:

When interpreting statutes enacted for the benefit or regulation of Indians or construing treaties signed with Indian Nations, courts are supposed to apply any of five specific canons of construction relating to the field of Indian Affairs. Through an examination of the Supreme Court’s cases involving statutory or treaty interpretation relating to Indian nations since 1987, this Article demonstrates that the Court has generally been faithful in applying canons relating to treaty interpretation or abrogation. The Court has also respected the canon requiring unequivocal expression of congressional intent before finding an abrogation of tribal sovereign immunity. However, there are two other canons that the Court almost never applies. One requires clear intent to interfere with tribal sovereign rights, the other requires statutes to be construed liberally with ambiguities resolved to the benefit of Indians. After reviewing the possible reasons why textualist jurists might be opposed to the use of substantive canons, this Article makes two arguments to remedy any reluctance to use these two canons: First, these canons have constitutional roots and as such even textualists on the Court should not be reluctant to use them. Secondly, the canon applicable to abrogation of tribal sovereign immunity should also be applied to statutes interfering with tribal sovereign rights. There are no normative reasons to treat abrogation of sovereign immunity differently than other statutory interference with tribal sovereignty.

Highly recommended!