This article argues that federal Indian law is located at the intersection of two competing paradigms: exceptionalism, under which Indian law is considered fundamentally different from the rest of U.S. public law; and assimilationism, under which differences between Indian law and the rest of U.S. public law are minimized or denied. The Supreme Court’s failure to resolve the conflict between these two paradigms produces doctrinal inconsistencies (although not, as some prominent scholars maintain, doctrinal incoherence). This article further argues that the conflict of these paradigms ultimately derives from two rival conceptions of Native sovereignty. First is the idea of autochthonous Native sovereignty – that is, an inherent sovereignty that predates contact and colonization, that does not depend on the U.S. Constitution, and that persists unless and until voluntarily surrendered or involuntarily extinguished. Second is the idea of heterochthonous Native sovereignty – that is, a sovereignty that derives primarily from the federal government and that generally remains subordinate to the demands of ordinary federalism under the U.S. Constitution. Finally, this article argues that the assimilationism paradigm should be rejected in favor of unambiguous commitments to autochthonous Native sovereignty and Indian law exceptionalism.
Who really decides what statutes say? Most Americans think that special interests play an outsized role in our lawmaking processes. Yet empirical studies have produced little evidence that special interests get everything, or even most of, what they ask for from Congress. This article takes an innovative new approach in tackling the difficult question of how advocates influence legislation. It presents the first, comprehensive empirical study of how advocates influence the law through amendments in the legislative process. The article analyzes an original dataset of 2137 witnesses testifying at referral hearings on 108 Indian related bills in the 97th and 106th Congresses. The analysis identifies amendments as an important yet previously undocumented way in which advocates influence legislation. It uncovers a rarely observed relationship between legislative advocates and sitting members of Congress. Comparison of advocates’ testimony on bills to amendments proposed by committee members reveals similar and even identical language, providing compelling evidence that groups persuaded legislators to introduce amendments valued by the group. The analysis also demonstrates how advocate influence at the hearing and mark up stage of the legislative process frequently shapes the law by dramatically increasing the likelihood of legislative enactment. These findings reveal an important mechanism that advocates can use to change the law. Further, they challenge prevailing narratives about power by demonstrating how underrepresented groups can leverage the legislative process in their law reform efforts.
This Article addresses the Federal Rules of Criminal Procedure’s unjust impact in the prosecution of Indians in federal court. As the rules of engagement used by federal prosecutors and defense attorneys in federal court when prosecuting Indians under the Major Crimes Act and the General Crimes Act, the Federal Rules of Criminal Procedure differ from those of Civil Procedure with regard to discovery procedures. Specifically, the Federal Rules of Criminal Procedure are unjust because they do not allow defense attorneys to conduct pretrial interviews or depositions of prospective witnesses whose evidence the United States will introduce at trial or use in the process of plea negotiations. Pretrial interviews and depositions prevent a party from being caught by surprise or ambushed in federal court.
Unlike federal courts, several tribes in New Mexico provide the mechanism for conducting pretrial interviews of trial witnesses. New Mexico state courts require pretrial interviews. New Mexico’s criminal procedural rules are similar to the procedural rules in Florida state courts. The states of Indiana, Missouri, and Vermont require depositions in criminal proceedings. In addition, military courts require depositions.
Indians were not involved in the enactment of the Major Crimes Act or the Federal Rules of Criminal Procedure, which have had a significant impact on the lives of Indians, both victims and defendants. This Article argues that the Federal Rules of Criminal Procedure should be modified to require pretrial interviews or depositions to ensure that Indians prosecuted in federal court are not unjustly ambushed.
Journal Water: Water Governance in an Era of Climate Change: A Model to Assess the Shifting Irrigation Demand and Its Effect on Water Management in the Western United States
Lauren van Schilfgaarde has posted “The Statutory Influence of Tribal Lay Advocates,” a book chapter forthcoming in “Rethinking the Lawyer’s Monopoly: Access to Justice and Future of Legal Services,” on SSRN.
Here is the abstract:
There is a lawyer shortage in Indian country. Comparable to Indigenous people across the globe, Native Americans lack access to justice in strikingly disproportionate numbers compared to non-Natives. This is in part because typical access to justice initiatives tend to fail rural communities, and particularly Native communities. Firstly, there are not enough Native attorneys. While Native Americans are approximately 1.6 percent of the U.S. population, they represent only 0.3 percent of the legal profession, a disproportionality that has been observed as “stark beyond measure.” In addition to education-access barriers, this disproportionality is rooted in historical efforts to bar Natives from participating in the American legal system, including from serving on juries, from serving as witnesses, and even from U.S. citizenship. Secondly, Non-Native attorneys are not filling the gap. There are not enough resources to attract attorney representatives, including woefully underfunded court systems coupled with insufficient compensation and housing for attorneys. Yet, the legal needs in Indian country are extensive. The vestiges of historical oppression against Natives manifest in devastating metrics, including the country’s highest rates of poverty and unemployment.
Intriguingly however, access to justice initiatives within Indian country do not exclusively focus on expanding access to attorneys, largely because Tribal legal traditions are not wholly dependent on lawyers. For example, the practice of Tribal law, an intellectual tradition dating back millennia, does not center the lawyer, but instead centers community customs and expectations. Further, Native Americans’ practices in Tribal court, which reflect their long-established legal traditions and continue as recognized expressions of their Tribal sovereignty, were established without the formal equivalent of the lawyer. The hundreds of Tribal courts across Indian country operate around and with lawyers, but also with experts in Tribal customary law, like elders, and with traditional processes and remedies, like peacemaking and restorative reparations. Lawyers tend to have a crippling lack of familiarity with Tribal courts and a false sense that Tribal law is an inferior practice area. Thus, even assuming attorneys came flocking to the Tribal court, and the Tribe had sufficient funds and political will to hire them on behalf of the Tribe, a law school-trained, state-barred attorney may nevertheless still lack the necessary legal and cultural competence to meet the needs of the Tribal court.
Outside of Indian country, the broader access-to-justice movement is increasingly calling for options apart from lawyers. Given the historical evolution of Tribal courts and their creative innovations to accommodate non-lawyer practitioners, Tribal courts may offer some useful insight for broader access-to-justice initiatives.
This chapter examines Tribal codes to determine the extent to which Tribes have codified the eligibility of lay advocates to appear in Tribal courts, and how, if at all, Tribes have contended with ethical concerns surrounding lay advocates, including their competence and accountability. It reveals how Tribal codes expressly incorporate cultural elements into the lay advocate’s roles. By examining Tribal codes, this chapter provides insight into Tribal views on lay advocates’ ability to enhance Tribal members’ access to justice, and also sheds light on potential guardrails to ensure that lay advocates provide ethical and effective representation.
The legal needs of most Americans go unmet, but American Indians and Alaska Natives face particular challenges in seeking access to justice. This article describes the complexity of access to justice issues in Native communities. Access to justice in Indian Country exists in the shadow of colonialism. The legacy of settler colonialism, including the imposition of unfamiliar laws and legal processes, has and continues to affect what justice means and how it is experienced by tribal governments, Native communities, and individual Natives. Understanding this unique backdrop encourages access to justice scholars to reconsider the centrality of power dynamics to access to justice.
Haaland v. Brackeen and Mancari: On History, Taking Children, and the Right-Wing Assault on Indigenous Sovereignty
Laura Briggs
In June 2023, the Supreme Court upheld the constitutionality of the Indian Child Welfare Act (ICWA) of 1978 in Haaland v. Brackeen, making it harder for (some) Indigenous families and communities to lose their children. The decision left one key question unanswered, however: whether protections specifically for American Indian households served as an illegitimate “racial” preference. Justice Amy Coney Barrett’s opinion for the majority argued that the petitioners lacked standing to raise this issue. Thus, the Court left the door open to continuing challenges by those who have an interest in using ICWA’s cute children and clean-cut evangelical Christian parents to try to put an end to this and all related statutes that give so-called “preferential treatment” to American Indians—including in gaming compacts, employment, federal treaties, and essentially all of Indian law. (more…)
Haaland v. Brackeen—A Window into Presenting Tribal Cases to the Court
Ian Heath Gershengorn
In this Essay, as I did at the Connecticut Law Review’s Symposium, I draw on my experience representing Tribes in Haaland v. Brackeen to discuss more broadly the effective presentation of tribal arguments to the Court. I touch briefly on four main topics. First, I discuss how we collaborated with amici to ensure that the Court would have the full context as it considered the issues in Brackeen. Second, I discuss how we thought about preparing for the argument and the particular importance of understanding the practical operation of the Indian Child Welfare Act. Third, I offer a few observations on the oral argument itself, focusing on how the structure of the argument influences the substance of the argument. And fourth, I step back and discuss why this is a particularly interesting and challenging time to argue Indian law cases before the Supreme Court. (more…)
Interrogating Haaland v. Brackeen: Family Regulation, Constitutional Power, and Tribal Resilience: The Connecticut Law Review Symposium
Casey M. Corvino & Julia R. Vassallo
In October 2023, the Connecticut Law Review hosted the Symposium “Interrogating Haaland v. Brackeen: Family Regulation, Constitutional Power, and Tribal Resilience.” The symposium was centered on the state of federal Indian law in the wake of the Brackeen decision. This decision was a victory for Indigenous families and Native nations as it left the Indian Child Welfare Act (ICWA) unscathed and affirmed the constitutional relationship between tribal nations and the United States. However, threats to tribal sovereignty continue as a handful of states and interest groups continue to seek ways to challenge tribal authority and federal laws that support it. (more…)
Nondelegation and Native Nations
Seth Davis
There is no nondelegation doctrine for Native nations, nor should there be one even if the Supreme Court revives the nondelegation doctrine for federal agencies and private parties. The Court has never struck down a statute on the ground that it delegated legislative power to a Native nation. Instead, it has held that Congress may recognize the sovereignty of Native nations and that their independent authority sustains statutes that rely upon Native governments to implement policy goals that they share with the United States. (more…)
The Original Meaning of Commerce in the Indian Commerce Clause
Gregory Ablavsky
In Haaland v. Brackeen, the Supreme Court returned to the foundational question of federal authority over relations between the United States and Native nations, long known as “Indian affairs.” The decision reaffirmed well-established precedent affirming broad federal authority in the area, but it also underscored ongoing disagreement, as Justices Gorsuch and Thomas offered lengthy and dueling investigations of the original understanding.
This Essay explores one aspect of that history: the original meaning of “commerce” in the Indian Commerce Clause. Nearly a decade ago, I wrote an article that sought, as its title indicated, to move “beyond the Indian Commerce Clause.” The Clause, I argued, was only one small component in how the early American political elite understood federal authority in this area. (more…)
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