Scholarship

Colette Routel and Jeffrey Holth have posted a paper on tribal consultation on SSRN

Ann Tweedy

It looks like an interesting and valuable piece. Here’s the abstract, and the full paper can be downloaded here.

“The tribal right to consultation requires the federal government to consult with Indian tribes prior to the approval of any federal project, regulation, or agency policy. This article, which provides the first comprehensive analysis of this right, highlights the current inconsistencies in interpretation and application of the consultation duty. It then attempts to provide suggestions for changes that can be implemented by the legislative, executive or judicial branches.

In Part I, we provide a brief overview of the development of the trust responsibility and explain how it came to include three substantive duties: to provide services to tribal members, to protect tribal sovereignty, and to protect tribal resources. In Part II, we offer the first detailed explanation of how the trust responsibility developed the procedural duty to consult with Indian tribes. In this section we also discuss recent attempts by the Obama Administration to reform the federal government’s consultation duty. In Part III, we analyze the consultation policies that have been developed by federal agencies. In doing so, we identify four flaws that have prevented these policies from being truly effective: lack of enforceability, specificity, uniformity, and substantive constraints. Finally, in Part IV we present our proposal for reforming the consultation duty through legislation, and offer suggestions that can be implemented by the judicial and executive branches in the interim. “

Fletcher on Free Speech and Tribal Law

Matthew L.M. Fletcher1 Comment

My chapter, “Resisting Congress: Free Speech and Tribal Law,” from our book, The Indian Civil Rights Act at Forty.

Here is the abstract:

Congress codified the unsettled tension between American civil rights law and American Indian tribal law, customs, and traditions in American Indian communities by enacting the Indian Civil Rights Act (ICRA) in 1968. Concerned that individual rights were receiving short shrift in tribal courts and by tribal governments,Congress chose to apply a modified form of the Bill of Rights on tribal governments. In other words, Congress chose to impose American legal norms on Indian governments in order to protect those under tribal jurisdiction.As it had done previously in statutes such as the Indian Reorganization Act, Congress affirmatively sought to displace tribal law — and all the attendant customs and traditions, as well as Indian values — with American law. Ironically, after the Supreme Court interpreted ICRA in 1978, this law could only be interpreted and enforced by tribal courts. Tribal law and American civil rights law have been at odds in many tribal communities ever since, as tribal voters, legislatures, and courts have struggled with how (and whether) to apply American civil rights law in Indian country.

In this chapter, I explore several questions relating to tribal courts, tribal governments, and the Indian Civil Rights Act. For example, do tribal decision makers (i.e., voters, legislatures, and especially courts) deviate from the state and federal government and court interpretations of the Bill of Rights in applying ICRA; and if so, how much and in what way? Do tribal decision makers apply or incorporate tribal law, customs, and traditions into their decisions relating to civil rights under ICRA (and tribal laws that incorporate ICRA’s provisions); and if so, how? Are tribal decision makers truly bound by the provisions of the ICRA?The last question begs a final question: Does Congress have authority to force tribal decision makers how to decide civil rights disputes?

New Scholarship on an Administrative Carcieri Fix

Matthew L.M. Fletcher

Howard Highland has posted his article, “A Regulatory Quick-Fix for Carcieri V. Salazar: How the Department of Interior Can Invoke an Alternative Source of Existing Statutory Authority to Overcome an Adverse Judgment Under the Chevron Doctrine,” on SSRN. The Administrative Law Review published the article in its 2011 volume.

Here is the abstract:

Secretary of the Interior Ken Salazar has requested that Congress enact a “legislative fix” for the Supreme Court opinion in Carcieri v. Salazar. In Carcieri, the Court interpreted the Indian Reorganization Act of 1934 (IRA) to effectuate a perverse distinction between Indian tribes under federal jurisdiction in June 1934 and Indian tribes whose relationship with the federal government was not established until after June 1934. Applying step one of the doctrine articulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the majority opinion of Justice Thomas declared that “the term ‘now under Federal jurisdiction’ in [the IRA] unambiguously refers to those tribes that were under the federal jurisdiction of the United States when the IRA was enacted in 1934.” As a result, a cloud now hangs over any land-into-trust transactions that the Secretary has made for Indian tribes which were not federally recognized until after 1934, and which are now unable to prove that their “post-1934 recognition [was granted] on grounds that implied a 1934 relationship between the tribe and Federal Government that could be described as jurisdictional.”

Whereas other proposals for a Carcieri fix presume the need for new legislation or regulations to fix Carcieri, this Recent Development argues that existing statutes and regulations already authorize the Secretary to overcome the effects of Carcieri. Even though the IRA no longer authorizes the Secretary to take land into trust for Indian tribes not under federal jurisdiction in June 1934, the Secretary’s fee-into-trust regulations under 25 C.F.R. Part 151 rest on several other pillars of statutory authority. 25 U.S.C. §§ 2 and 9 are the strongest alternative sources of statutory authority under which the Secretary may claim delegated authority for fee-into-trust acquisitions on behalf of Indian tribes not under federal jurisdiction in June 1934. Under the Chevron doctrine, 25 U.S.C. §§ 2 and 9 constitute an explicit delegation of authority to the Secretary to promulgate “legislative regulations [which] are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Such legislative regulations are thus entitled to the maximum amount of Chevron deference.

25 U.S.C. §§ 2 and 9 also form the statutory basis for 25 C.F.R. § 83.12(a), which entitles acknowledged tribes to “the privileges and immunities available to other federally recognized historic tribes,” and renders them “eligible for the services and benefits from the Federal government that are available to other federally recognized tribes.” Hence, federal acknowledgment under 25 C.F.R. Part 83 ought to include the benefits available to tribes under 25 C.F.R. Part 151. This Recent Development urges that the ruling in Carcieri does not prohibit the Secretary from asserting that he has always held statutory authority under 25 U.S.C. §§ 2 and 9 to transfer land into trust for Indian tribes acknowledged under 25 C.F.R. Part 83. Although not every tribe federally recognized after 1934 was given status under 25 C.F.R. Part 83, the regulatory quick fix proposed in this paper would minimize the devastating consequences of Carcieri while a legislative fix stalls in Congress.

Kristen Carpenter on Limiting Principles and American Indian Religious Freedoms

Matthew L.M. Fletcher2 Comments

Kristen A. Carpenter has posted her much-anticipated paper, “Limiting Principles and Empowering Practices in American Indian Religious Freedoms,” on SSRN. This work is highly recommended, and we will be engaging Professor Carpenter in this topic for some time. This is, of course, a follow-up to Carpenter, Katyal, and Riley’s “In Defense of Property.” For more on IDP, see this exchange between the authors and Michael Brown.

Here is the abstract:

American Indians have lost all of their religious freedoms cases before the Supreme Court, with the Court famously holding in Lyng v. Northwest Indian Cemetery Protective Association (1988) that the government may destroy Indian sacred sites and in Employment Division v. Smith (1990) that the government may prohibit Indian sacraments, all without violating the First Amendment. Scholars have generally attributed these holdings to the Court’s simultaneous narrowing of individual Free Exercise Clause rights and broadening of government property rights. Yet there is another similarity linking Lyng and Smith, and many of the Indian Free Exercise Clause cases decided in the federal courts. The courts have often perceived the Indian claims as too broad or idiosyncratic to recognize as a matter of right. A claim to protect a sacred site from desecration might actually represent an attempt to recover all of the public lands and a religious entitlement to peyote could lead to widespread religious exemptions for drug users. Holding that the government could not function if required to accommodate claims of this breadth, the courts have rejected them. Such reasoning appears specious to tribal religious practitioners, followers of ancient traditions that prescribe specific limits, of geography, time, and space on religious practice, and preclude the kind of “slippery slope” claims that the courts seem to fear. And yet attempts to make such arguments in the courts have been completely unsuccessful. As in cases outside of the Indian context, the courts considered and rejected tests that would limit Free Exercise Clause relief to practices deemed “central” or “indispensable” to religions. According to the Supreme Court, such tests put judges in the position of interrogating subjective theological questions, a role that they were never intended to play.

This Article identifies and traces the courts’ unsuccessful search for a “limiting principle” in American Indian Free Exercise jurisprudence. While generally critiquing the outcome in these cases as infringing on fundamental liberties, I concede it would be difficult to devise a single principle to apply meaningfully across the several hundred American Indian religions. Even if such a standard could be located, it would still not address the courts’ institutional concerns. Yet developments since Lyng and Smith, and other cases, suggest another way forward. In 1993 Congress enacted the Religious Freedom Restoration Act, and several statutes requiring the federal agencies to “accommodate” American Indian religious practices. These statutes, in my view, respond to the concerns about “limits” in two ways. They place the obligation to accommodate Indian religions in federal agencies, which are both politically accountable and expert in Indian affairs, and they recognize the rights of Indian tribes, as such, in sacred sites, eagle feathers, burial grounds, and peyote practices. With tribal governments at the table, Indian religious claimants are empowered to articulate the source and scope of their religious claims, in their own terms, and negotiate meaningful accommodations with federal agencies. While challenges remain, the Article argues that the courts’ failed attempts to discern “limiting principles” in Indian religious freedoms cases has given way to an “empowering practices” approach with some success in fashioning agency accommodations of Indian religious needs. More broadly, the Article’s review of religious accommodation in the American Indian context offers insights into the strengths and weaknesses of entrusting religious freedoms to Congress and the agencies in the post-Smith era.

Ezra Rosser on Progressive Property

Matthew L.M. Fletcher

Ezra Rosser has posted his new paper, “The Ambition and Transformative Potential of Progressive Property,” on SSRN. It is forthcoming in the California Law Review.

Here is the abstract:

The emerging progressive property school of thought champions and finds its meaning in the social nature of property. Rejecting the idea that exclusion lies at the core of property law, progressive property scholars call for a reconsideration of the relationships owners and non-owners have with property and with each other. Despite these ambitions, so far progressive property scholarship has largely confined itself to questions of exclusion and access. This paper argues that such an emphasis glosses over the race-related acquisition and distribution problems that plague American history and property law. The modest structural changes supported by progressive property scholars fail to account for this racial history and, by so doing, present a limited vision of the changes to property law that progressive scholars should support. Though sympathetic with the progressive property political and scholarly orientation and the policy arguments made regarding exclusion and access, I argue that the first priority of any transformative project of progressive property must be revisiting acquisition and distribution.

New Book Announcement: Robert Miller’s “Reservation Capitalism”

Matthew L.M. Fletcher

Here is the book’s website. The blurb: 

This unique book investigates the history and future of American Indian economic activities and explains why tribal governments and reservation communities must focus on creating sustainable privately and tribally owned businesses if reservation communities and tribal cultures are to continue to exist.

American Indians are the poorest people in the United States, and their reservations are the most poverty-stricken; as a result, they suffer from numerous social pathologies that accompany these economic conditions. Tragically, most tribal communities were historically prosperous, comprising healthy, vibrant societies sustained over hundreds or thousands of years.

Native American peoples suffer from health, educational, infrastructure, and social deficiencies that most Americans who live outside of tribal lands are wholly unaware of and would not tolerate. By creating sustainable economic development on reservations, however, gradual, long-term change can be effected, thereby improving the standard of living and sustaining tribal cultures.

Reservation “Capitalism”: Economic Development in Indian Country supplies the true history, present-day circumstances, and potential future of Indian communities and economics. It provides key background information on indigenous economic systems and property rights regimes in what is now the United States, and explains how the vast majority of native lands and natural resource assets were lost. The book focuses on strategies for establishing privately and publicly owned economic activities on reservations and creating economies where reservation inhabitants can be employed, live, and buy the necessities of life, thereby enabling complete tribal self-sufficiency and self-determination.

 

 

Bowers and Carpenter on Lyng in “Indian Law Stories”

Matthew L.M. Fletcher

Amy Bowers and Kristen Carpenter have posted their excellent chapter on Lyng from “Indian Law Stories” on SSRN — “Challenging the Narrative of Conquest: The Story of Lyng v. Northwest Indian Cemetery Protective Association.” Here is the abstract:

In Lyng v. Northwest Indian Cemetery Protection Association (1988), the Supreme Court held that it would not violate the Free Exercise Clause for the U.S. Forest Service to build a road through the “High Country,” an area that is sacred to Yurok, Karuk, and Tolowa Indians living in Northern California and Southern Oregon. Unable to show “coercion” of their religious beliefs, the Indian plaintiffs could not rely on the First Amendment to protect their interests in aboriginal territory now owned by the United States. As Justice O’Connor wrote: ‘‘Whatever rights the Indians may have to the use of the area, those rights do not divest the Government of its right to use what is, after all, its land.’’ Scholars have criticized the case as narrowing individual Free Exercise rights and expanding the government’s property rights, to the detriment of religious freedoms. While Lyng deserves this notoriety, an exclusive focus on defects in the holdings obscures other important dimensions of the case. In particular, the Supreme Court’s opinion comes close to silencing altogether the Indians’ perspective on their sacred High Country. Law and religion scholarship, with few exceptions, also ignores tribal voices both on the religious practices and advocacy strategies that were so key to the Lyng case and its aftermath. Indeed, the Forest Service road was never built and the tribes continue to practice their religions in the High Country.

This article offers a tribally-centered version of Lyng, one that is rarely told, at least outside of tribal communities. Based on interviews with tribal members who participated in the case, as well as interdisciplinary research into the anthropology and religion literature, this is a story of cultural revival fueled by the Indian way of life. It is a story of a community forced to defend itself against the assimilationist agenda of the federal government — and developing a contemporary political identity in the process. It is a story of the inextricable relationship between Indian people and lands, in which the Tribes’ attachment to their sacred sites ultimately triumphed over the Supreme Court’s narrow application of religion and property laws. In the final analysis, we argue, the Indian story of religious and cultural persistence has prevailed over Lyng’s ostensible narrative of conquest. Today, as Lyng’s doctrinal legacy threatens to undermine advances made under the Religious Freedom Restoration Act of 1993, the broader story told here is potentially revealing for everyone concerned with religious liberties in the United States.

Kristen Carpenter on Individual Religious Freedoms in American Indian Tribal Constitutional Law

Matthew L.M. Fletcher

Kristen Carpenter has published her essay, “Individual Religious Freedoms in American Indian Tribal Constitutional Law” in our new book, The Indian Civil Rights Act at Forty (UCLA American Indian Studies Center Publications 2012). It is available on SSRN.

Here is the abstract:

Written on the 40th Anniversary of the Indian Civil Rights Act, this article engages with a prominent critique of individual rights in tribal communities, namely that they effectuate the ‘assimilation’ of tribal people, values, and institutions. On the one hand, because American Indian religions emphasize collective values and experiences, this critique is particularly apt in the religion context, and the imposition of individual rights norms recalls the federal government’s historic efforts to destroy tribes by eradicating tribal religious practices. Moreover, in many tribal communities, religion is conceptualized and practiced not in terms of ‘rights’ but rather ‘duties’ to other people, plants, animals, natural features, and the ceremonies themselves. On the other hand, some Indian tribes have historically recognized personal liberties in spiritual practices, and now consider it an obligation of self-government to protect individual interests in religion. This article explores these themes, particularly as they manifest in tribal constitutional law, which reveals a broad spectrum of rights and duties, individual and collective protections. The article also elaborates on several ways that tribes recognize individual rights in the context of tribal culture, namely using tribal custom as a basis for interpreting positive law on individual religious rights, maintaining separate institutions for the resolution of legal disputes about religion, and engaging in constitutional reform to change religious rights provisions that are inconsistent with tribal values. In the final analysis, the article observes that that while many challenges remain, tribal governments often try to facilitate individual and collective interests in religious freedom today.

New Scholarship: Five Year Review of the American Indian Probate Reform Act

Matthew L.M. Fletcher

Diane K. Lautt has published “The American Indian Probate Reform Act: A Five-Year Review” in the Washburn Law Journal.

Kyle Whyte on Indigenous Peoples and Solar Radiation Management

Matthew L.M. Fletcher

Kyle Whyte has posted “Indigenous Peoples, Solar Radiation Management, and Consent,” available in REFLECTING SUNLIGHT: THE ETHICS OF SOLAR RADIATION MANAGEMENT (2012). Here is the abstract:

Funding research on solar radiation management (SRM) is now a policy option for responding to climate change due to the perception that international abatement efforts are creeping along too slowly. SRM research presents a range of problems concerning consent for Indigenous peoples. Indigenous peoples’ landscapes may risk rapid, unforeseen changes that will force communities either to respond under great hardship or migrate elsewhere. Since the science and engineering behind SRM are esoteric to non-experts, legitimate concerns arise about transparency and procedural justice. Indigenous peoples may also contest the very idea of human “control” of global temperatures. In this paper, I will examine what it would take for parties interested in funding, designing, and carrying out early SRM research to fairly respect members and leaders of Indigenous peoples in their current discourses. Ethical concern is warranted. Indigenous peoples have yet to be addressed responsibly about their possible consenting and dissenting views on early SRM research. There is little to no identifiable commitment to establish substantive fora or events for Indigenous peoples to engage with others about whether such research should be conducted in the first place and, if so, what to research and how to conduct empirical inquiries. Policy makers, experts, and private citizens of the developed world have a heavy moral burden to bear if they progress toward early SRM research without engaging in consent processes with Indigenous peoples. I begin in section 2 by claiming that the (arguably dominant) lesser of two evils argument for early SRM research can be construed as invaliding any potential dissenting views of Indigenous peoples. I deepen this claim in section 3 by showing how this argument resembles an argument that has been used throughout history to silence Indigenous peoples from meaningful consent or dissent. I then move on in section 4 to cover the scant literature that suggests possible consent processes for early SRM research. The common theme in this literature is that any fora or events for convening Indigenous peoples regarding SRM research should occur after research has been planned and even begun — thereby defeating the purpose of consent processes altogether. Consent or dissent after the fact is meaningless. In section 5, I argue that consent processes acceptable to Indigenous peoples must be based on partnership and include the following two requirements. First, Indigenous peoples should contribute actively to conversations about how to structure the consent processes in which they would participate. Second, in their interactions with Indigenous peoples, proponents of early SRM research are responsible for addressing them as sovereigns of their territories — despite the colonial conditions in many nations that frustrate Indigenous peoples’ political independence.