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.
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David Moore and Michalyn Steele on Revitalizing Indian Sovereignty in Treatymaking

David H. Moore and Michalyn Steele have published “Revitalizing Indian Sovereignty in Treatymaking” in the N.Y.U. Law Review.

Abstract:

In the current model of federal-Indian relations, the United States claims a plenary legislative power, as putative guardian, to regulate Indian tribes. Under this model, tribes are essentially wards in a state of pupilage. But the federal-tribal relationship was not always so. Originally, the federal government embraced, even promoted, a more robust model of tribal sovereignty in which federal-Indian treatymaking and diplomacy figured prominently. Through treaties, the United States and tribes negotiated territorial boundaries, forged alliances, facilitated trade, and otherwise managed their relations. In 1871, Congress attempted to put an end to federal-Indian treatymaking by purporting to strip tribes of their status as legitimate treaty partners. In a rider to the 1871 Appropriations Act, Congress prohibited the recognition of tribes as sovereign entities with whom the United States could negotiate treaties. Since that time, the 1871 Act and the plenary power-pupilage model it entrenched have grown deep roots in federal Indian law and the policies of the United States. Congress has aggrandized its role in tribal life at the expense of tribal sovereignty, and the coordinate branches of the federal government have acquiesced in this foundational shift.

The literature of federal Indian law has wrestled with the doctrine of plenary power, contemplated the fate of the federal-tribal treaty relationship, and questioned the constitutionality of the 1871 rider. This Article posits new arguments for the unconstitutionality of the 1871 Act, uprooting the presumptions underlying the Act and revitalizing the prospect of federal-Indian treatymaking. Two recent developments provide an opportunity for such a transformation. In Zivotofsky v. Kerry, the Supreme Court held that the President alone possesses the power to recognize foreign states and governments. While Zivotofsky was a landmark case for U.S. foreign relations law, its potential significance for federal Indian law has gone underappreciated. Zivotofsky did not directly address the locus of power to recognize tribal sovereignty to enter treaties, but it prompts the question and provides a blueprint for arriving at an answer. Engaging that blueprint, this Article argues that the President possesses the exclusive power to recognize tribes’ sovereign capacity to enter treaties. The result: The 1871 Act is unconstitutional because it attempts to limit that power. In our view, the President can and should unilaterally reengage in federal-Indian treatymaking, revitalizing treatymaking and reanimating the sovereignty model of federal-Indian relations.

A second development, the Supreme Court’s decision in McGirt v. Oklahoma, is less fundamental to the argument but also significant for revitalizing tribal sovereignty. In McGirt, the Court recognized the ongoing vitality of federal-Indian treaties that were entered when the sovereignty model prevailed, strengthening both claims to tribal sovereignty and the viability of treatymaking in the federal-Indian relationship.

The implications of these developments are significant. Deracinating the 1871 Act disrupts the dominance of the plenary power doctrine and pupilage model with their attendant abuses, more fully realizes the promise of the United States’ policy of Indian self-determination and commitment to international norms, and generates positive ripples for Indigenous-state relationships across the globe.

HIGHLY recommended.

End of Federal-Tribal Treatymaking & Great Chicago Fire of 1871 Coincidence or Correlation?

Sarah Deer, Elise Higgins & Thomas White on Racist Editorializing about ICWA

Sarah Deer, Elise Higgins, and Thomas White have published “Editorializing ICWA: 40 Years of Colonial Commentary” in UCLA’s Indigenous Peoples’ Journal of Law, Culture & Resistance.

An excerpt:

Despite studies concluding ICWA has been a successful law to curb the crisis of child removal in Indian country when implemented correctly, a significant number of attorneys, think tanks, and politicians argue that ICWA actually harms Native children and should be repealed. Oth- ers argue that ICWA has served its purpose and is no longer necessary. This article considers how newspaper editorials perpetuate misinformation about ICWA, its history and its purpose. Moreover, we explore how anti-ICWA authors employ “words of colonialism”—in particular, the use of derogatory words and phrases to portray Native people as bad parents and Tribal Nations as dysfunctional. Providing inaccurate and racist characterizations of ICWA is one of the primary tactics used by editorials to delegitimize ICWA. Emotionally triggering and wholly inaccurate language is often employed as a sensationalist method to grab the reader’s attention by presenting the law in terms of clear-cut morality.

Frederick Thompson Richards, Life Magazine, 1900

Kekek Stark on Anishinaabe Rights of Nature Cases

Kekek Jason Stark has published “Bezhigwan Ji-Izhi-Ganawaabandiyang: The Rights of Nature and its Jurisdictional Application for Anishinaabe Territories” in the Montana Law Review.

An excerpt:

This article examines the tribal law acknowledging the Rights of Na- ture as a deeply embedded traditional Anishinaabe law principle. This traditional law principle acknowledging the rights of nature is crucial for sustaining the Anishinaabe Nations’ relationship with their territorial lands and natural resources. What does it mean to recognize the rights of ma- noomin (wild rice) to “exist, flourish, regenerate, and evolve” or to be pro- tected in its traditional forms, natural diversity, and original integrity? This article then delineates the various ways that the White Earth Band of Ojibwe has codified their relationship with their territorial lands and natural resources into tribal law. While the rights of manoomin and similar laws have been widely touted in the press as important victories for tribal sover- eignty, this article more deeply evaluates the practical effects and applica- tions of this tribal law to determine whether this law can serve as a frame- work for other Tribal Nations or is merely a symbolic gesture. Moving beyond symbolic gestures is essential for tribes to implement legal regimes more protective than those provided by states that may otherwise permit development activities by non-Indian parties within treaty territories.

HIGHLY, HIGHLY recommended.

New Empirical Study by Harvard/Federal Reserve Researchers Shows that the Restoration of Reservation Status Has No Negative Impact on Local Economies, etc.

Michael Velchek and Jeffery Y. Zhang have posted “Restoring Indian Reservation Status: An Empirical Analysis” on SSRN. The paper is forthcoming in the Yale Journal on Regulation. Here is the abstract:

In McGirt v. Oklahoma, the Supreme Court held that the eastern half of Oklahoma was Indian country. This bombshell decision was contrary to the settled expectations and government practices of 111 years. It also was representative of an increasing trend of federal courts recognizing Indian sovereignty over large and economically significant areas of the country, even where Indians have not asserted these claims in many years and where Indians form a small minority of the inhabitants.

Although McGirt and similar cases fundamentally turn on questions of statutory and treaty interpretation, they are often couched in consequence-based arguments about the good or bad economic effects of altering existing jurisdictional relationships. One side raises a “parade of horribles.” The other contends “the sky is not falling.” Yet, to date, there is hardly any empirical literature to ground these debates. Litigants have instead been forced to rely upon impressionistic reasoning and economic intuitions.

We evaluate these competing empirical claims by exploiting natural experiments: judicial rulings altering the status quo of Indian reservation status. Applying well- established econometric techniques, we first examine the Tenth Circuit’s Murphy v. Royal decision in 2017 and the Supreme Court’s McGirt v. Oklahoma decision in 2020, which both held that the eastern half of Oklahoma was in fact Indian country. To do so, we leverage monthly employment data at the county level, annual output data at the county level, and daily financial data for public companies incorporated in Oklahoma. Contrary to the “falling sky” hypothesis that recognition of Indian jurisdiction would negatively impact the local economy, we observe no statistically significant effect of the Tenth Circuit or Supreme Court opinions on economic output in the affected counties.

We supplement these findings by analyzing five further case studies. These include three Supreme Court decisions: Nebraska v. Parker (concerning the Village of Pender, Nebraska); City of Sherill v. Oneida Indian Nation (City of Sherill, New York); South Dakota v. Yankton Sioux Tribe (Mix County, South Dakota). We also analyze settlements between Tribes and State governments in Mt. Pleasant, Michigan, in 2010 and Tacoma, Washington, in 1989. On balance, we report no statistically significant evidence that recognition of Tribal jurisdiction reduces economic performance in the affected counties, and we provide several hypotheses to contextualize these finding. These results have important consequences for ongoing litigation, including the Supreme Court’s upcoming merits case Oklahoma v. Castro-Huerta, No. 21-429 (U.S.), in which the litigants have raised competing empirical arguments about the effects of the McGirt decision.

Highly recommended.

Indian Law Scholarship Roundup


Taking Stock: Open Questions and Unfinished Business Under VAWA Amendments to the Indian Civil Rights Act

Hastings Law Journal, Vol. 73, No. 2, 2022, Number of pages: 54 Posted: 08 Apr 2022, Accepted Paper Series, Jordan Gross, Alexander Blewett III School of Law at the University of Montana

Akhil Amar’s Unusable Past

Michigan Law Review, Forthcoming, Number of pages: 24 Posted: 07 Apr 2022, Working Paper Series, Gregory Ablavsky, Stanford Law School

Tribal Sovereignty and Economic Efficiency Versus the Courts

Washington Law Review, Forthcoming, Number of pages: 49 Posted: 05 Apr 2022, Working Paper Series, Robert J. Miller, Arizona State University (ASU) – Sandra Day O’Connor College of Law

The Role of Truth-Telling in Indigenous Justice

Forthcoming, 11 Journal of Race, Gender and Ethnicity __, Number of pages: 21 Posted: 04 Apr 2022, Working Paper Series, Sara Ochs, University of Louisville – Louis D. Brandeis School of Law

The World’s Largest Dam Removal Project: The Klamath River Dams

Number of pages: 57 Posted: 23 Mar 2022, Working Paper Series, Michael C. Blumm and Dara Illowsky, Lewis & Clark Law School and Lewis & Clark College, Law School