Scholarship – Page 161

Angelique Eaglewoman: Tribal Values of Taxation within the Tribalist Economic Theory (SSRN)

November 2, 2007November 3, 2007Matthew L.M. Fletcher

Angelique Eaglewoman/Wambdi A. Wastewin of Hamline law has posted “Tribal Values of Taxation within the Tribalist Economic Theory” on SSRN. The paper is forthcoming from the Indigenous Nations Journal (KU).

From the Abstract:

Tribal governments in mid-North America exercise inherent sovereignty by imposing taxes within tribal territories. The recent history of commerce and commercial relationships is explored in this article along with the underlying cultural values that have guided economic relations. Taxation as a natural embodiment of tribal values of sharing and generosity fit within this tribalist economic theory. As Tribal Nations interacted with the newly formed settler government in this area, the United States, this new government sought to colonize tribal peoples, tribal resources, lands, and institutions. This colonial mentality continues to operate against Tribal Nations impeding and interfering with tribal resource management, resource utilization, taxation and the realization of prosperity. Recent developments in international indigenous human rights law support the assertion of full tribal sovereignty in the tribal territorial to the exclusion of the United States, including in the area of taxation. With this support in international law, Tribal Nations are able to continue to exercise economic development in harmony with the tribal values exemplified in the tribalist economic theory.

Tales from the Cert Pool: Justice Blackmun’s Papers on Cotton Petroleum

October 31, 2007November 1, 2007Matthew L.M. Fletcher1 Comment

Cotton Petroleum Corp. v. New Mexico is one of the harshest outcomes in the modern era of Indian law cases decided by the Supreme Court. In this case, the Court held that states may tax non-Indian-owned businesses doing business in Indian Country, even where the tribe has imposed its own tax. In short, the states may double-tax non-Indians, effectively preempting tribal taxes on the tribe’s own land.

The recent uploading of Justice Blackmun’s papers on the internet offers a glimpse into the background of the case.

In Cotton Petroleum, two documents are available: The cert pool memo and Justice Blackmun’s docket sheet recording the votes of the Justices.

The Court decided to grant certiorari in this case over the recommendation of the cert pool memo to deny cert. Justices White, Stevens, O’Connor, and Blackmun voted to grant cert (in accordance with the Rule of Four, only four votes are required to grant cert), while Rehnquist, Brennan, Marshall, Scalia, and Kennedy voted to deny.

One interesting (and awful) tidbit from the cert pool memo is that the memowriter noted that the tribal interests weren’t represented in the litigation and that, importantly, Cotton Petroleum hadn’t introduced evidence about the impact of New Mexico’s tax on tribal sovereignty:

“As [New Mexico] and [state] amici explain, this Court’s precedents require a showing of actual impact on tribal interests in self-government before pre-emption will be found, and [Cotton Petroleum] failed to introduce evidence of such impact in this case.” Cert Pool Memo at 7.

As noted above, the impact of New Mexico’s tax on tribal sovereignty was devastating, but since Cotton Petroleum was never in a position to make the argument, it was never developed.

Moreover, in a case denied cert that same Term, Rodney, Dickason v. Revenue Division of New Mexico, the cert pool memowriter (Deborah Malamud of NYU) argued that “the Indian preemption framework serves a substitute for the now-repudiated doctrine that state law has no effect on Indian reservations…. As that doctrine was geographical in nature, perhaps it makes sense that those same limits should apply to its modern substitute.” Cert Pool Memo in Rodney, Dickason at 8-9. But, alas, the Court decided not to adopt such a workable bright-line rule.

More tales from the cert pool memos will follow over the next several weeks.

Book Review of Christian W. McMillen’s “Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory”

October 29, 2007December 11, 2007Matthew L.M. Fletcher1 Comment

My short book review of Christian W. McMillen‘s excellent book, “Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory” (Yale University Press) is available for download here. My review appears in the American Indian Culture and Research Journal.

Patrice Kunesh on ICWA: “Borders Beyond Borders”

October 29, 2007Matthew L.M. Fletcher

Patrice Kunesh (South Dakota Law) has posted “Borders Beyond Borders: Protecting Essential Tribal Relations Off Reservation Under the Indian Child Welfare Act” on her BEPRESS Selected Works site.

Patrice presented her paper at the 3rd Annual Indigenous Law Conference, “Facing the Future: The Indian Child Welfare Act at 30.”

Abstract:

2008 is the thirty year anniversary of the enactment of the Indian Child Welfare Act (ICWA), one of the most dynamic pieces of legislation in federal Indian affairs that irrevocably changed the jurisdictional prerogatives of states and tribes. ICWA’s tribal wardship provision is remarkably constructive because it vests tribes with exclusive jurisdiction over Indian children who are wards of the tribal court–irrespective of the child’s domicile. This jurisdictional scheme, a rough mixture of territorial and personal criteria, defies the normative notions of state court jurisdiction over family relations. And the cross-hatching of state and tribal interests in off-reservation child welfare matters has engendered serious tension and questions about the precise contours of tribal sovereignty and the boundary line between state and tribal power.

This article investigates the transformation point between tribal and state jurisdiction over Indian child welfare matters. From an examination of the historical development of tribal wardship decisions and ICWA’s legislative history, material unexamined in this context in other scholarship, I posit that tribes, as unique political entities in our federal system of government, possess inherent attributes of sovereignty to regulate their internal social relations. ICWA is premised on the dual nature of tribal sovereignty, and allows, if not encourages, tribes to redefine their relationship to state governments by recognizing that the power to adjudicate internal matters, including child custody matters, derives from a source independent of the land. Thus, there are no real boundaries to protecting these essential tribal relations where the exercise of tribal authority is vital to the maintenance of tribal integrity and self-determination.

“Indian Treaties and the Survival of the Great Lakes”

October 26, 2007Matthew L.M. Fletcher

As part of the Michigan State Law Review Symposium, The Great Lakes Compact, we (Profs. Singel & Fletcher) published a short paper, “Indian Treaties and the Survival of the Great Lakes.” The paper and symposium are now online.

Other authors include without limitation Jim Olson, Austen Parrish, Dan Tarlock, and Mark Squillace. Check it out.

Talk Announcement: “Factbound and Splitless: The Impact of the Certiorari Process on Federal Indian Law” @ UM Law School

October 25, 2007Matthew L.M. Fletcher

Your humble blogger will be giving a talk at the University of Michigan Law School (co-sponsored, I understand, by the U-M NALSA and the Michigan Journal of Race & Law) on November 12, 2007 at 12:20 PM in Room 150 of Hutchins Hall.

My talk will be called, “Factbound and Splitless: The Impact of the Certiorari Process on Federal Indian Law.”

Here’s the blurb I gave the students on this talk:

I have reviewed each of the 144 Indian law-related cert petitions filed in the Supreme Court from the 1986 to 1993 Terms. Tribal interests began losing 75 percent of their cases in the Court starting in 1987, a significantly worse win rate than even convicted criminal petitioners. I argue that the critical factors the Court looks for in deciding whether to grant cert — “circuit splits,” cases of national “importance,” and cases that are not “factbound” — create structural (and yet wholly discretionary) barriers to the vindication of tribal interests in Supreme Court adjudication.

If you want to read the documents I’ve read in this study, check out the Digital Archive of the Papers of Harry A. Blackmun. And bring your docket numbers, because that’s how it’s organized.

Kevin Washburn: A Legal History of Bryan v. Itasca County

October 23, 2007October 24, 2007Matthew L.M. Fletcher

Kevin Washburn has posted his paper, “The Legacy of Bryan v. Itasca County: How a $147 County Notice Helped Bring Tribes $200 Billion in Gaming Revenue.”

From the abstract:

The Supreme Court’s landmark 1976 decision in Bryan v. Itasca County is known within Indian law academia for the story that Professors Phil Frickey and Bill Eskridge tell about the case: it reflects a dynamic and pragmatic interpretation of a termination-era statute to limit Congressional termination’s harmful legacy during a more enlightened era of tribal self-determination. What is less well-appreciated about the case is that it provided the legal bedrock on which the Indian gaming industry was built. This article explores the genesis of the litigation and traces its path, describing how it came to produce a unanimous Supreme Court opinion of surprising breadth. It also demonstrates that the right to engage in gaming, which ultimately has produced vast tribal economic development and even riches for some tribes, had its roots as much in Indian poverty as in Indian sovereignty.

Cert Petition in Carcieri v. Kempthorne

October 19, 2007Matthew L.M. Fletcher1 Comment

From Indianz.com:

Rhode Island appeals land-into-trust ruling
Friday, October 19, 2007

The state of Rhode Island is asking the U.S. Supreme Court to hear a land-into-trust case that is being watched by tribes nationwide.

In July, the 1st Circuit Court of Appeals ruled that the Bureau of Indian Affairs can place 31 acres in trust for the Narragansett Tribe. The tribe is like any other tribe and can follow the Indian Reorganization Act, which authorized the land-into-trust process, the court said.

As I will argue in my forthcoming article, “Factbound and Splitless: An Empirical Study of the Impact of the Certiorari Process on Federal Indian Law,” the Supreme Court is unlikely to grant cert. in this case for two important reasons. First, there is no circuit split (“splitless”). What that means is that the federal courts of appeal that have addressed the question of the constitutionality of the fee to trust process (25 U.S.C. § 465) — the 8th Circuit in South Dakota v. Kempthorne, the 10th Circuit in Utah v. Shivwits, and the 11th Circuit in Roberts v. U.S., are examples — have held (just as the 1st Circuit did here) that the statute is constitutional.

Second, this case involves the muddying aspects of the Rhode Island Indian Claims Settlement Act and how it affects the application of § 465, rendering this case a bit messy as a factual matter (“factbound”). If this was a straight-up interpretation of § 465 without the Settlement Act’s application, the Court would be more likely to grant cert (although, without a split, not so much). In short, this case implicates a relatively small number of tribes (those Rhode Island tribes).

Land-into-Trust Decision:
Carcieri v. Kempthorne (July 20, 2007)

Earlier 1st Circuit Decision:
Carcieri v. Norton (February 9, 2005)

Relevant Documents:
Carcieri v. Norton Briefs, Opinions (NARF-NCAI Tribal Supreme Court Project

Relevant Laws:
Rhode Island Indian Claims Settlement Act (US Code)

Relevant Links:
Narragansett Tribe – http://www.narragansett-tribe.org
Tribal Supreme Court Project – http://www.narf.org/sct/index.html

Felix Cohen’s “On the Drafting of Tribal Constitutions”

October 18, 2007October 18, 2007Matthew L.M. Fletcher

By David E. Wilkins, Felix S. Cohen, Lindsay G. Robertson

A newly discovered document sheds light on Indian self-governance Felix Cohen (1907–1953) was a leading architect of the Indian New Deal and steadfast champion of American Indian rights. Appointed to the Department of the Interior in 1933, he helped draft the Indian Reorganization Act (1934) and chaired a committee charged with assisting tribes in organizing their governments. His “Basic Memorandum on Drafting of Tribal Constitutions,” submitted in November 1934, provided practical guidelines for that effort.

Largely forgotten until Cohen’s papers were released more than half a century later, the memorandum now receives the attention it has long deserved. David E. Wilkins presents the entire work, edited and introduced with an essay that describes its origins and places it in historical context. Cohen recommended that each tribe consider preserving ancient traditions that offered wisdom to those drafting constitutions. Strongly opposed to “sending out canned constitutions from Washington,” he offered ideas for incorporating Indigenous political, social, and cultural knowledge and structure into new tribal constitutions.

On the Drafting of Tribal Constitutions shows that concepts of Indigenous autonomy and self-governance have been vital to Native nations throughout history. As today’s tribal governments undertake reform, Cohen’s memorandum again offers a wealth of insight on how best to amend previous constitutions. It also helps scholars better understand the historic policy shift brought about by the Indian Reorganization Act.

David E. Wilkins is Professor of American Indian Studies and Adjunct Professor of Political Science, Law, and American Studies at the University of Minnesota, Twin Cities, and coauthor of Uneven Ground: American Indian Sovereignty and Federal Law. Lindsay G. Robertson, Professor of Law at the University of Oklahoma, is the author of Conquest by Law: How the Discovery of America Dispossessed Indigenous People of Their Lands.

University of Oklahoma Press