The Michigan State Law Review Forum has published my short article, “Due Process and Equal Protection in Michigan Anishinaabe Courts.” Check it out.
Fletcher on Due Process and Equal Protection in Michigan Anishinaabe Courts
Scholarship
Angela Riley & Sarah Glenn Thompson on Dual Sovereignty and Indian Country Crimes
Angela Riley & Sarah Glenn Thompson have posted “Mapping Dual Sovereignty and Double Jeopardy in Indian Country Crimes,” recently published in the Columbia Law Review, on SSRN.
Here is the abstract:
The Double Jeopardy Clause guarantees no individual will be put in jeopardy twice for the same offense. But, pursuant to the dualsovereignty doctrine, multiple prosecutions for offenses stemming from the same conduct do not violate the Clause if the offenses charged arise under the laws of separate sovereigns, even if the laws are otherwise identical. The doctrine applies to tribal prosecutions, but its impact in Indian country is rarely studied. Such an inquiry is overdue, particularly as the scope of crimes potentially subject to dual tribal and federal prosecutions has broadened in recent years. This Article is the first to undertake a preliminary examination of the dual-sovereignty doctrine in the tribal–federal context and describe the complex interplay between the doctrine and the rest of the criminal law fabric in Indian country. Perhaps most significantly, it includes an original typology highlighting when a defendant may be subject to the doctrine, which sovereigns have the authority to prosecute, pursuant to what source of power each sovereign operates, and when and how the sequence of prosecutions matters, if at all. This leads to the Article’s central thesis: Indian tribes are separate sovereigns with inherent sovereignty, and, under current conditions, the dual-sovereignty doctrine plays a central role in ensuring safety in Indian country. The doctrine’s application in Indian country, however, creates unique complexities that may threaten tribal sovereignty and raise issues of unfairness for defendants. This Article offers numerous reforms—some highly ambitious and others more modest—to address these issues.
Jack Fiander on the Constitutional Foundation of Federal-Tribal Relations
Jack Fiander has posted “The Melding of International Law and the Customary Law of Tribal Nations; The Constitutional Origin of Federal-Tribal Relations” on SSRN.
Here is the abstract:
To seek understanding of the basis for the relationship of the government of the United States with tribal nations it is necessary to examine not only the intent of the “Founding Fathers” but also that of the tribal nations with whom those framers of the United States Constitution dealt at the time of America’s founding. To do otherwise is ethnocentric, at best, and omits half the equation. Establishing a Constitutional relationship requires the perspective of both sides, not only that of those acting on behalf of the fledgling United States. At the time this nation’s founding, tribal nations were mighty in number and therefor treated by Colonists as sovereign nations to be dealt with in conformity with respect for their respective forms of customary and international law. Recognizing tribal sovereignty required adherence to what might be described as tribal laws of nations to manage their own internal affairs, as is evident in the framers’ deferential dealings with Tribal Nations in the founding era and thereafter. Because Colonists understood the need to gain alliances with the powerful tribal nations to secure protection against foreign powers, the Framers appropriated concepts from Tribal nations, which paralleled those in the international Law of Nations, to which much Constitutional authority for the relationship of the United States with tribal nations is traceable.
American Indian Law Top Downloads for 2022 on SSRN
There was a lot of great American Indian law scholarship this past year. Here is a list of the papers focusing on American Indians and Indian tribes that were law-review length. Some really interesting things were excluded, like Greg Ablavsky’s posts defending his scholarship that had TONS of downloads but were not really law review articles, and lots of international material, etc. Here you go:
Tribal Nations and Abortion Access: A Path Forward [371]
Harvard Journal of Law and Gender, Forthcoming
Number of pages: 79 Posted: 18 Aug 2022
Working Paper Series
Lauren van Schilfgaarde, Aila Hoss, Ann E. Tweedy, Sarah Deer and Stacy Leeds
UCLA School of Law, Indiana University McKinney School of Law, University of South Dakota School of Law, University of Kansas and Arizona State University (ASU) – Sandra Day O’Connor College of Law
Restoring Indian Reservation Status: An Empirical Analysis [278]
Yale Journal on Regulation, Vol. 41, No. 1, Forthcoming, Law & Economics Center at George Mason University Scalia Law School Research Paper Series No. 22-047
Number of pages: 68 Posted: 13 Apr 2022 Last Revised: 01 Dec 2022
Working Paper Series
Michael Velchik and Jeffery Zhang
Harvard University and University of Michigan Law School
Five Linguistic Methods for Revitalizing Indigenous Laws [257]
McGill Law Journal, Forthcoming
Number of pages: 33 Posted: 17 May 2022 Last Revised: 23 May 2022
Accepted Paper Series
Dalhousie University – Schulich School of Law
The Indian Child Welfare Act as Reproductive Justice [202]
Boston University Law Review, Vol. 103, Forthcoming 2023
Number of pages: 62 Posted: 01 Sep 2022
Working Paper Series
University of Idaho – College of Law
The Ascension of Indigenous Cultural Property Law [184]
Michigan Law Review, Vol. 121, No. 1, 2022
Number of pages: 70 Posted: 29 Nov 2022
Accepted Paper Series
University of California, Los Angeles (UCLA)
Continue readingPaul Mooney on Cannabis in Indian Country
Paul Mooney has published “Making Marijuana Less Illegal: Challenges for Native American Tribes Entering the Marijuana Market” in the South Dakota Law Review.
American Indian Law Journal, Volume 11, Issue 1
Here:
Current Issue: Volume 11, Issue 1 (2022)
Articles
Education Administration in Federal Indian Law: Learning From A Colonial Project Turned Tool of Liberation
Ariel Liberman and Douglas L. Waters Jr.
Native America: Universities as Quasi-Cities, Sovereignty and The Power to Name
Victoria Sutton
The Digital Isolation of Indigenous Communities
Myranda Buiquy
A Jurisprudential Quilt of Tribal Civil Jurisdiction: An Analysis of Tribal Court Approaches to Determining Civil Adjudicatory Jurisdiction
Jacob Maiman-Stadtmauer
American Indian Law Journal, Volume 11, Issue 1
Here:
Current Issue: Volume 11, Issue 1 (2022)
Articles
Education Administration in Federal Indian Law: Learning From A Colonial Project Turned Tool of Liberation
Ariel Liberman and Douglas L. Waters Jr.
Native America: Universities as Quasi-Cities, Sovereignty and The Power to Name
Victoria Sutton
The Digital Isolation of Indigenous Communities
Myranda Buiquy
A Jurisprudential Quilt of Tribal Civil Jurisdiction: An Analysis of Tribal Court Approaches to Determining Civil Adjudicatory Jurisdiction
Jacob Maiman-Stadtmauer
Blumm on Salmon and Climate Change
Michael C. Blumm has posted “Salmon, Climate Change, and the Future,” forthcoming in the Environmental Law Reporter, on SSRN.
Here is the abstract:
This article examines salmon law and policy in the context of ongoing climate change. The article examines the nature of the threats that climate change poses and will continue to pose for salmon recovery, as well as possible legal responses to combat these threats. It also considers the future prospects of Pacific salmon in a world that will include significant climate change and other threats to preserving and equitably apportioning the salmon resource, whose environmental sensitivity and expansive life cycle will continue to pose substantial challenges for the foreseeable future. The Article is excerpted from “Pacific Salmon Law and the Environment: Treaties, Endangered Species, Dam Removal, Climate Change, and Beyond” (ELI Press 2022).
New Scholarship on Tribal-State Tax Agreements
Pippa Browde has published “Sacrificing Sovereignty: How Tribal-State Tax Compacts Impact Economic Development in Indian Country” in the Hastings Law Journal (PDF).
Abstract:
Economic development is a critical component of tribal sovereignty. When a state asserts taxing authority within Indian Country, there is potential for overlapping, or juridical, taxation over the same transaction. Actual or even potential juridical taxation threatens economic development opportunities for tribes. For many years, tribes and states have entered into intergovernmental agreements called tax compacts to reduce or eliminate juridical taxation. Existing literature has done little more than mention tax compacts with cursory cost-benefit analyses of the agreements. This is the first Article to critically examine the role tax compacts serve in promoting tribes’ economic development.
This Article analyzes economic development activities in Indian Country as two types of transactions: when the tribe or tribal enterprise is engaging as a retailer, and when a tribe or tribal enterprise is working with non-tribal entities in joint ventures. Using these categories of transactions as a framework, and looking to existing compacts between various tribes and states as examples, the analysis focuses on the impact compacts have on economic development in Indian Country. This Article argues that compacts do not live up to the promise of resolving juridical taxation in a manner that fosters economic development opportunities for tribes.
Greg Bigler on Euchee Legal Traditions
Gregory Bigler has posted “7000 Dzo-Gaw-law (Ancestors)” on SSRN. Here is the abstract:
I read Stories from the Euchee Reservation on a plane. I read it cover to cover, I was as if emerging from a dream in which animals and humans understand one another and spirits come to visit over a cup of coffee.
Judge Bigler is a Euchee tribal citizen and a member of Polecat Ceremonial Grounds, a Harvard Law School graduate, longtime district court judge at the Muscogee (Creek) Nation. He co-counselled Indian law cases to the U.S. Supreme Court, mentored generations of Indian law attorneys, published law review articles.
Yet as Judge Bigler’s stories make clear, Indian people are keeping their traditions alive, listening to their chiefs, speaking Indigenous languages, and navigating contemporary circumstances: sending gossipy texts at the stomp grounds, wolf eating tofu in the forest, or teasing academics about their decolonizing methodologies. Shaw-jane, Mr. Rabbit, remains popular even after many years on the Indian story circuit.
This is a world, real life, for the people who keep the fire, the towns, the ballgames, and dances alive day in and day out, carrying out the ways of their people. These are cultural traditions handed down from generation to generation, suppressed for hundreds of years, still surviving today. Even if only with maybe a few hundred traditional practitioners.
The U.S. Supreme Court decided in the 2020 case of Jimcy McGirt v. State of Oklahoma that the Muscogee (Creek) Nation remains a reservation, “Indian Country” for purposes of federal criminal jurisdiction. The McGirt decision, means the Muscogee (Creek) Nation government has jurisdiction over a significant portion of northeast Oklahoma.
What law now applies in the reservation? Federal and tribal law, perhaps state law by agreement or statute? What is tribal law exactly? The United Nations Declaration on the Rights of Indigenous Peoples recognizes the right of tribes to exist as distinct peoples with their own “laws, customs, and traditions.” It recognizes their rights to maintain their religious sites, indigenous languages, sacred plants, traditional medicines – or as Natives put it, the Declaration recognizes the rights of Indigenous Peoples to maintain their “ways.”
The ways of the Muscogee and Euchee people are carried on at the stomp grounds. These ways can be understood as the laws, customs, and traditions of the Muscogee and Euchee people, are highly complex, deeply embedded, and alive. Following the directions of their chiefs, carrying out ceremonial rules, honoring the spirit world, maintaining peace and order, caring for children while teaching them proper ways of behavior, and so on. These laws, customs, and traditions, structure Euchee society in Stories from the Euchee Reservation. These laws are challenged by many things – the history of conquest and colonization, generations of social and economic deprivation, and the temptations of contemporary society – yet they remain alive to this day.
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