My paper, “Tribal Consent,” is available for download on SSRN. It’s a draft, perhaps even messier than my usual drafts. Constructive criticism welcome to my regular email address.

Here is the abstract:

Tribal consent to federal statutes, regulations, and cases that decide matters critical to American Indian people and Indian tribes long has been lacking. The nineteenth and twentieth century Supreme Court cases are replete with efforts by Indians and tribes to avoid the dictates of many of these laws and regulations that directly injured tribal interests, almost always to no avail. Congress legislated, the Executive branch acted, and the Supreme Court either walked away or upheld the law and its enforcement. Conversely, tribal governance has been dramatically altered in recent decades in part by the notion that non-Indians and non-tribal entities have not consented to assertions of tribal government authority over them. This lack of consent is meaningful because Indian tribes are not beholden to the dictates of the American Constitution (nor could they be), and so the nonmembers could be subject to governmental authority unfettered by individual constitutional rights.

The first part of this paper is a short history of the incorporation of Indian tribes into the American policy, largely without the consent of Indian tribes and Indian people. The second part moves beyond the discussion of the lack of tribal consent to federal and state governance, and how that lack of consent actually generated the legal and political justification for Congressional (and federal) plenary power over Indian affairs. The third part describes how express and literal consent has come to dominate federal common law on tribal authority over nonmembers. This part explores the irony of introducing nonmembers in vast numbers into Indian country without tribal consent, and then forcing tribal governments to acquire literal consent from those nonmembers in order to govern them. The fourth, and last, part argues for a theory of tribal consent. Unlike the vague and even fictional consent espoused by thinkers such as Justice Kennedy, and denigrated by critics who bemoan its limitations, tribal consent theory should be explored and integrated in federal Indian law. In fact, the United Nations Declaration of the Rights of Indigenous Peoples requires that states acquired the free and informed consent of Indigenous governments and people before taking action detrimental to those peoples, giving rise to a kind of literal consent theory and practice desperately needed in American Indian affairs.

Chi-miigwetch to the Stanford Journal of Civil Rights and Civil Liberties offering a home to this paper.