Richard Pomp on Dilworth and Indian Taxation

Richard Pomp has published “Overturning Dilworth and the Impact on Tribes” in the May 29, 2023 edition of Tax Notes:

An excerpt: “The tribes in states with vendor-based sales taxes should be alert to this impending problem should the Court deny a review of the case. To be forewarned is to be forearmed.”

Kronk Warner and Lillquist on Tribes and Rights of Nature

Elizabeth Ann Kronk Warner and Jensen Lillquist have posted “Laboratories of the Future: Tribes and Rights of Nature,” published in California Law Review, on SSRN. Here is the abstract:

From global challenges such as climate change and mass extinction, to local challenges such as toxic spills and undrinkable water, environmental degradation and the impairment of Earth systems are well documented. Yet, despite this reality, the U.S. federal government has done little in the last thirty years to provide a comprehensive solution to these profound environmental challenges; likewise, significant state action is lacking. In this vacuum, environmental legal advocates are looking for innovative environmental solutions to these challenges. Against this backdrop, rights of nature have increasingly gained traction as a possible legal tool to help protect the natural environment from the harms perpetrated by humans. Rights of nature laws generally have two elements: (1) legal personhood for natural entities, such that nature has standing in court, and (2) substantive rights for natural entities. This Article explores the scope and origins of rights of nature and examines how they are being implemented both within the United States and abroad. It highlights the work being done by Tribes and Indigenous Peoples in this space and argues that, particularly in the United States, state and local governments should learn from this work. Specifically, the work of Tribes in this space can serve as alternative ethical paradigms and laws for non-Native communities looking for an alternative to the status quo. In the United States, Tribes can serve as “laboratories” for environmental change given their tribal sovereignty and environmental ethics. In addition, Tribes exist within a different legal framework from U.S. states and municipalities. By comparing rights of nature-related litigation in Florida and in the White Earth Nation of Ojibwe, it becomes clear that rights of nature provisions adopted by Tribes stand a greater chance of withstanding legal challenge than provisions adopted by municipalities. Accordingly, environmental reform can benefit from the collaboration and experimentation of Tribes.

Jaune Smith

Michael Rusco on Castro-Huerta

Michael D. O. Rusco has posted “Oklahoma v. Castro-Huerta, Jurisdictional Overlap, Competitive Sovereign Erosion, and The Fundamental Freedom of Native Nations,” recently published in the Marquette Law Review, on SSRN.

Here is the abstract:

In addition to its stunning internal flaws, the United States Supreme Court’s opinion in Oklahoma v. Castro-Huerta exemplifies Indian law’s broader flaws as a jurisprudence. Castro-Huerta holds that states have concurrent criminal jurisdiction with federal and tribal governments over crimes by non-Indians against Indians on reservation lands. Justice Gorsuch deftly addresses many of the glaring internal flaws in Kavanaugh’s majority opinion, but not all. He does not dissect the hollow assertion that reservations are part of the surrounding state both geographically and politically. This cannot go unaddressed, particularly given its weak analysis, misguided use of precedent, and broader consequences.

Castro-Huerta’s holding affects the precise kind of “jurisdictional overlap” at the root of the slow erosion of tribal sovereignty over time, as first explained in a prior article. The Founders believed two governments generally cannot co-exist, i.e. overlap. They had a firm idea of what happens when jurisdictional overlap occurs: one government slowly subsumes the other over time until nothing meaningful is left, here labeled “competitive sovereign erosion.” The Founding Fathers believed this proposition so much and feared it so deeply that it played a central role in how the Constitution was written, specifically the categorical division of authority between the federal and state governments. Tribal sovereignty will continue to be vulnerable to competitive sovereign erosion until a solution is reached that results in either a respect for tribal borders, or a qualitative division of governmental authority between tribal governments, the federal government, and the states. Anything less will continue the long-term war of sovereign attrition historically experienced by tribes.

Analyzing Indian law as a competitive sovereign erosion problem of the sort contemplated by the Framers and discussing it in terms of United States federalism has additional jurisprudential and advocacy advantages. Doing so disconnects Indian law from the tortured logic exemplified by Castro used to reach anti-Indian results, and reconnects it to the intuitively fair, commonly accepted, and historically effective answers used when White cultures have had the same kinds of problems. From an advocacy perspective, competitive erosion adopts a conceptual framework and lexicon that resonates with conservatives commonly opposed to tribal sovereignty. Using competitive erosion can present tribal sovereignty in a way that persuadable conservatives can embrace.

Tribes wanting to maintain their separate existence need to overturn the assertion that reservations are part of the state, oppose practices that give the appearance of being part of state government, and push congress for legislation that will eliminate jurisdictional overlap between tribes, states, and the federal government.

New Student Scholarship on Man Camps and Indian Country

Justin E. Brooks has published “Two Countries in Crisis: Man Camps and the Nightmare of Non- Indigenous Criminal Jurisdiction in the United States and Canada” in the Vanderbilt Journal of Transnational Law. Here is the abstract:

Thousands of Indigenous women and girls have gone missing or have been found murdered across the United States and Canada; these disappearances and killings are so frequent and widespread that they have become known as the Missing and Murdered Indigenous Women Crisis (MMIW Crisis). Indigenous communities in both countries often lack the jurisdiction to prosecute violent crimes committed by non-Indigenous offenders against Indigenous victims on Indigenous land. Extractive industries—businesses that establish natural resource extraction projects—aggravate the problem by establishing temporary housing for large numbers of non-Indigenous, primarily male workers on or around Indigenous land (“man camps”). Violent crimes against Indigenous communities around extractive industry projects have in- creased with the establishment of man camps while the current legal systems leave Indigenous communities vulnerable against this clear threat. Both the United States and Canada have endorsed international declarations of Indigenous rights, agreeing to protect Indigenous communities from violence, yet the MMIW Crisis in both countries con- tinues. This Note first argues that both the United States and Canada can best further their commitments to international Indigenous rights while also combatting the MMIW Crisis by allowing Indigenous communities to exercise full criminal jurisdiction over non-Indigenous assailants of Indigenous victims on Indigenous lands. This Note then argues that, until full criminal jurisdiction over non-Indigenous offenders is realized, the United States and Canada can help further Indigenous international rights by providing extractive industries with financial incentives to address their role in enabling the MMIW Crisis.

American Indian Law Review, Vol. 47, No. 1


Current Issue: Volume 47, Number 1 (2023)


Front Pages



The Impact of Climate Change on the Cultural Identity of Indigenous Peoples and the Nation’s First “Climate Refugees”
Jordan K. Medaris


Indigenous Boarding Schools in the United States and Canada: Potential Issues and Opportunities for Redress as the United States Government Initiates Formal Investigation
Keiteyana I. Parks



State ex rel. Matloff v. Wallace: Reversing Course on Subject Matter Jurisdiction
Andrew Case


Cooley’s Hidden Ramifications: Has the Supreme Court Extended the Terry Doctrine for Automobile Searches to the Point of Eliminating Probable Cause?
Thomas G. Hamilton

Special Features


“The Center Cannot Hold”: Nation and Narration in American Indian Law
Chantelle van Wiltenburg


Winner, Best Appellate Brief in the 2022 Native American Law Student Association Moot Court Competition
Daniel Ahrens and Case Nieboer

John LaVelle on Castro-Huerta

John P. LaVelle has published Surviving Castro-Huerta: The Historical Perseverance of the Basic Policy of Worcester v. Georgia Protecting Tribal Autonomy, Notwithstanding One Supreme Court Opinion’s Errant Narrative to the Contrary in the Mercer Law Review.

Here is the abstract:

Oklahoma v. Castro‑Huerta is an unprecedented attack on the autonomy of Native American nations in the United States. The Supreme Court held that Oklahoma had jurisdiction over a crime committed by a non‑Indian perpetrator against an Indian victim within the Cherokee Reservation’s boundaries. The decision posits that states presumptively have jurisdiction, concurrent with the federal government, over crimes by non‑Indians against Indians in Indian country. But this proposition is at war with a bedrock principle of Indian law, namely, that reservations are essentially “free from state jurisdiction and control,” a policy that “is deeply rooted in the Nation’s history.” That principle has stood the test of time, with the high court itself guarding tribes’ autonomy and sovereignty in celebrated Indian law cases dating to the nation’s founding.

Castro‑Huerta drastically extends the reach of state authority into Indian country, and it does so by imposing a dubious, revisionist retelling of the history of U.S.‑tribal relations. The false narrative forged by the majority reflects an extremist “states’‑rights” ideology aggressively projected onto the field of Indian law, threatening to “wip[e] away centuries of tradition and practice” by uprooting a core historical principle protective of Indigenous rights. The decision provoked an immediate U.S. governmental response, with a House subcommittee holding hearings and the Justice and Interior Departments conducting listening sessions in September 2022 to begin assessing the case’s dire implications. Scholarly criticism already is underway as well and likely will proliferate and intensify. With so much at stake for the preservation of tribal sovereignty and the future of federal Indian law, unmasking and deconstructing the decision will remain a pressing project for years to come.

This Article contributes to the project by examining the long line of historical Supreme Court precedents addressing state authority in Indian country to discern and explain their true significance. In addition, the Article casts light on a few important issues in Castro‑Huerta from a unique source: the papers of individual Justices archived at the Library of Congress and various universities across the country. A point of departure is Justice Neil Gorsuch’s dissenting opinion in the case, a searing critique that delves incisively into many of the relevant precedents, exposing numerous flaws and fallacies in the majority’s analysis and laying the groundwork for additional commentary and criticism. Anchored in that foundation of principled critical assessment, this Article endeavors to help fill in some of the serious gaps and omissions in the majority’s treatment of state authority in Indian country while periodically referencing the “Indian Law Justice Files” to further illuminate the case’s alarming distortions of history and precedent.

Jaune Smith

Kalae Trask on Oral Tradition in U.S. and Canadian Courts

Kalae Trask has published “Toward Mutual Recognition: An Investigation of Oral Tradition Evidence in the United States and Canada” in the Washington Journal of Social and Environmental Justice.

The abstract:

United States (“U.S.”) courts have long failed to recognize the value of oral traditional evidence (“OTE”) in the law. Yet, for Indigenous peoples, OTE forms the basis of many of their claims to place, property, and political power. In Canada, courts must examine Indigenous OTE on “equal footing” with other forms of admissible evidence. While legal scholars have suggested applying Canadian precedent to U.S. law regarding OTE, scholarship has generally failed to critically examine the underlying ethos of settler courts as a barrier to OTE admission and usefulness. This essay uses the work of political philosopher, James Tully, to examine OTE not just as evidence, but as an exercise of Indigenous self-determination. By recognizing the inherent political nature of OTE, U.S. courts may expand on Canadian law to build a “just relationship” with Indigenous peoples.

Mitchell Forbes on Powers of Alaska Tribes without Reservations

Mitchell Forbes has published “Beyond Indian Country: The Sovereign Powers of Alaska Tribes Without Reservations” in the Alaska Law Review. PDF

Here is the abstract:

The Alaska Native Claims Settlement Act of 1971 (ANCSA) devised a land entitlement system markedly different from the Indian reservation system that prevailed in the Lower 48 states. It directed the creation of twelve, for-profit Alaska Native regional corporations and over 200 private, for-profit Alaska Native village corporations, which would receive the bulk of Native land in the state. This corporate model left nearly all tribes in Alaska without a land base. As such, there is very little Indian Country land in the state over which tribes can exercise territorial-based sovereignty. Yet, the Supreme Court has long recognized the power of tribes to exercise membership-based jurisdiction. This Comment analyzes a range of state and federal court decisions addressing the authority of tribes and argues that Alaska tribes, through membership-based jurisdiction, can exercise various sovereign powers, like the exclusion of nonmembers. Importantly, this membership-based jurisdiction does not depend on lands over which tribes can exercise jurisdiction. Therefore, the exclusionary orders imposed by several Alaska Native tribes during the Covid-19 pandemic in 2020 were valid exercises of the tribes’ sovereign powers.

Highly recommended.

Sarah Deer on Feminist Jurisprudence in Tribal Courts

Sarah Deer has published “Feminist Jurisprudence in Tribal Courts: An Untapped Opportunity” in the Yale Journal of Law and Feminism.

An excerpt:

What if every gendered legal issue was not burdened by over 200 years of patriarchal and racist precedent? How would feminists craft legal practices and structures in a way that would be grounded by a clear understanding of the harms of oppression and subjugation? These questions are not just rhetorical; this essay argues that a fresh perspective is possible in the context of an Indigenous feminist jurisprudence. Indigenous feminist legal theory (IFLT) is in its nascent stages as a contemporary academic discipline and praxis. It has largely been elucidated by legal scholars in Canada, including Emily Snyder, Val Napoleon, and John Borrows. Snyder explains that IFLT lies at the intersection of feminist legal theory, Indigenous feminist theory, and Indigenous legal theory.