Michael Doran has posted “Tribal Sovereignty Preempted,” forthcoming in the Brooklyn Law Review, on SSRN. Here is the abstract:
In June of 2022, the U.S. Supreme Court held in Oklahoma vs. Castro-Huerta that a state may prosecute a non-Indian for a crime committed against an Indian within Indian country. That decision effectively overruled Worcester vs. Georgia, an 1832 landmark case in which Chief Justice Marshall said that state law “can have no force” in Indian country. Although the conventional wisdom sees Castro-Huerta as a radical departure from first principles of federal Indian law, I argue that it is the natural – although deeply deplorable – next step in a long line of Supreme Court decisions expanding state governmental authority within Indian country. Additionally, this line mirrors a separate line restricting tribal governmental authority within Indian country. Through a critical examination of these decisions, I show how the Supreme Court over the last half century has systematically privileged state interests and the interests of individual non-Indians over tribal interests and that, in so doing, the Court has arrogated to itself the political function of defining tribal sovereignty. I argue that Congress should reject the Court’s relentless subordination of Indian interests to non-Indian interests and reassert its role in defining and defending a robust conception of tribal sovereignty.
The unearthing of the remains of Indigenous children on the sites of former Indian Residential Schools (“IRS”) in Canada has focused greater attention on anti-Indigenous atrocity violence in the country. While such increased attention, combined with recent efforts at redressing associated harms, represents a step forward in terms of recognizing and addressing the harms caused to Indigenous peoples through the settler-colonial process in Canada, this note expresses concern that the dominant framings of anti-Indigenous atrocity violence remain myopically focused on an overly narrow subset of harms and forms of violence, especially those committed at IRSs. It does so by utilizing a process-based understanding of atrocity and genocide that helps draw connections between familiar, highly visible, and less recognized forms of atrocity violence, which tend to be overlapping and mutually reinforcing in terms of their destructive effects. This process-based understanding challenges the neocolonial, racist, and discriminatory attitudes reflected in the drafting and interpretation of the Genocide Convention and other atrocity laws that ignore the lived experiences of subjugated groups. Utilizing this approach, this note argues that, as applied to Indigenous populations, Canada’s longstanding discriminatory child welfare practices and policies represent an overlooked process of anti-Indigenous atrocity violence. Only by understanding current child welfare challenges facing Indigenous communities as interwoven with longstanding anti-Indigenous atrocity processes, such as the IRS system, can we understand what is at stake for affected communities and fashion appropriate remedies in international and domestic law.
Federal public lands in the United States were carved from the territories of Native Nations and, in nearly every instance, required that the United States extinguish pre-existing aboriginal title. Following acquisition of these lands, the federal government pursued various strategies for them, including disposal to states and private parties, managing lands to allow for multiple uses, and conservation or protection. After over a century of such varied approaches, the modern public landscape is a complex milieu of public and private interests, laws and policies, and patchwork ownership patterns. This complexity depends on—and begins with—the history of Indigenous dispossession but subsequent developments have created additional layers of complication. Recently, a broad social movement, captured succinctly by the social media hashtag “#Landback” and including some American Indian tribes, has begun calling for the restoration of the nation’s lands to Native ownership, including the transfer of all public lands to tribal hands. This article aims to contextualize and assess the more recent history of the transfer of federal public lands to Indian tribes, which has often taken the form of the United States transferring such lands into trust ownership for the benefit of a particular tribe. The article is the first comprehensive collection and analysis of 44 statutes enacted by Congress from 1970 to 2020 that transfer ownership interests in public lands to federally-recognized Indian tribes. These statutes are bookended by the return of Blue Lake to Taos Pueblo in New Mexico (1970) and the return of the National Bison Range to the Confederated Salish and Kootenai Tribes in Montana (2020). Analysis of these laws surfaces common themes and provisions related to the political dynamics of such congressional actions and the terms of post-transfer tribal or federal management. In particular, the article relies on four primary case studies to provide background, context, and detail in illustrating these themes : (1) Blue Lake on the Carson National Forest to Taos Pueblo, (2) the Western Oregon Tribal Fairness Act, (3) Chippewa National Forest land to the Leech Lake Band of Ojibwe in Minnesota, and (4) the National Bison Range to the Confederated Salish and Kootenai Tribes in Montana. These examples are representative of the larger catalog of transfer statutes and demonstrate the variation and complexity associated with each individual transfer situation. Hopefully, this first-ever collection of these laws will provide a practical grounding and depth of understanding for those considering or advocating for “#Landback.” More broadly, these examples and the common themes that tie them together raise important questions about the historical and continuing patterns of public land ownership and control.
Tomasz G. Smolinski, A Proposal for a Model Indigenous Intellectual Property Protection Tribal Code (MIIPPTC), 22 Tribal L.J. 3 (2023).
Dustin Jansen, The Role of United States v. Cooley and McGirt v. Oklahoma in Determining Criminal Jurisdiction in Indian Country, 22 Tribal L.J. 30 (2023).
Wesley James Furlong, “Subsistence is Cultural Survival”: Examining the Cultural and Legal Framework for the Recognition and Protection of Traditional Cultural Landscapes within the National Historic Preservation Act, 22 Tribal L.J. 51 (2023).
Student Articles
Noah Allaire, Experiments in Legal Hybridity: From Indian Tort Law to Tribal Tort Law, 22 Tribal L.J. 122 (2023).
Alejandro Alvarado, Tribes and H-1Bs: A Call to Reconcile U.S. Immigration Policy and Tribal Governments Through Employment-Based Visas, 22 Tribal L.J. 151 (2023).
Micah S. McNeil, Traditional Tlingit Law and Governance and Contemporary Sealaska Corporate Governance: Four Core Values and a Jurisprudence of Transformation, 22 Tribal L.J. 168 (2023).
Jonathan Skinner-Thompson has posted “Tribal Air,” forthcoming in the Arizona State Law Journal, on SSRN. Here is the abstract:
Prevailing approaches to addressing environmental justice in Indian Country are inadequate. The dual pursuits of distributive and procedural justice do not fully account for the unique factors that make Indigenous environmental justice distinct—namely, the sovereign status of tribal nations and the ongoing impacts of colonization.
This article synthetizes interdisciplinary approaches to theorizing Indigenous environmental justice and proposes a framework to aid environmental law scholars and advocates. Specifically, by centering Indigenous environmental justice in terms of coloniality and self-determination, this framework can better critique and improve environmental governance regimes when it comes to pollution in Indian Country.
This article tests that framework on air regulation in Indian Country. Although many consider the Clean Air Act a regulatory success story, air pollution still disproportionately harms American Indians and Alaska Natives. To that end, Tribal Air offers a comprehensive account of air regulation in Indian Country, including a more detailed analysis of tribal air quality laws. It then applies theories of settler colonialism and instruments of self-determination to the implementation of the Clean Air Act in Indian Country. Together these concepts aspire towards an anti-colonialist purpose and offer important ways to achieve Indigenous environmental justice.
An excerpt: “The tribes in states with vendor-based sales taxes should be alert to this impending problem should the Court deny a review of the case. To be forewarned is to be forearmed.”
From global challenges such as climate change and mass extinction, to local challenges such as toxic spills and undrinkable water, environmental degradation and the impairment of Earth systems are well documented. Yet, despite this reality, the U.S. federal government has done little in the last thirty years to provide a comprehensive solution to these profound environmental challenges; likewise, significant state action is lacking. In this vacuum, environmental legal advocates are looking for innovative environmental solutions to these challenges. Against this backdrop, rights of nature have increasingly gained traction as a possible legal tool to help protect the natural environment from the harms perpetrated by humans. Rights of nature laws generally have two elements: (1) legal personhood for natural entities, such that nature has standing in court, and (2) substantive rights for natural entities. This Article explores the scope and origins of rights of nature and examines how they are being implemented both within the United States and abroad. It highlights the work being done by Tribes and Indigenous Peoples in this space and argues that, particularly in the United States, state and local governments should learn from this work. Specifically, the work of Tribes in this space can serve as alternative ethical paradigms and laws for non-Native communities looking for an alternative to the status quo. In the United States, Tribes can serve as “laboratories” for environmental change given their tribal sovereignty and environmental ethics. In addition, Tribes exist within a different legal framework from U.S. states and municipalities. By comparing rights of nature-related litigation in Florida and in the White Earth Nation of Ojibwe, it becomes clear that rights of nature provisions adopted by Tribes stand a greater chance of withstanding legal challenge than provisions adopted by municipalities. Accordingly, environmental reform can benefit from the collaboration and experimentation of Tribes.
In addition to its stunning internal flaws, the United States Supreme Court’s opinion in Oklahoma v. Castro-Huerta exemplifies Indian law’s broader flaws as a jurisprudence. Castro-Huerta holds that states have concurrent criminal jurisdiction with federal and tribal governments over crimes by non-Indians against Indians on reservation lands. Justice Gorsuch deftly addresses many of the glaring internal flaws in Kavanaugh’s majority opinion, but not all. He does not dissect the hollow assertion that reservations are part of the surrounding state both geographically and politically. This cannot go unaddressed, particularly given its weak analysis, misguided use of precedent, and broader consequences.
Castro-Huerta’s holding affects the precise kind of “jurisdictional overlap” at the root of the slow erosion of tribal sovereignty over time, as first explained in a prior article. The Founders believed two governments generally cannot co-exist, i.e. overlap. They had a firm idea of what happens when jurisdictional overlap occurs: one government slowly subsumes the other over time until nothing meaningful is left, here labeled “competitive sovereign erosion.” The Founding Fathers believed this proposition so much and feared it so deeply that it played a central role in how the Constitution was written, specifically the categorical division of authority between the federal and state governments. Tribal sovereignty will continue to be vulnerable to competitive sovereign erosion until a solution is reached that results in either a respect for tribal borders, or a qualitative division of governmental authority between tribal governments, the federal government, and the states. Anything less will continue the long-term war of sovereign attrition historically experienced by tribes.
Analyzing Indian law as a competitive sovereign erosion problem of the sort contemplated by the Framers and discussing it in terms of United States federalism has additional jurisprudential and advocacy advantages. Doing so disconnects Indian law from the tortured logic exemplified by Castro used to reach anti-Indian results, and reconnects it to the intuitively fair, commonly accepted, and historically effective answers used when White cultures have had the same kinds of problems. From an advocacy perspective, competitive erosion adopts a conceptual framework and lexicon that resonates with conservatives commonly opposed to tribal sovereignty. Using competitive erosion can present tribal sovereignty in a way that persuadable conservatives can embrace.
Tribes wanting to maintain their separate existence need to overturn the assertion that reservations are part of the state, oppose practices that give the appearance of being part of state government, and push congress for legislation that will eliminate jurisdictional overlap between tribes, states, and the federal government.
Thousands of Indigenous women and girls have gone missing or have been found murdered across the United States and Canada; these disappearances and killings are so frequent and widespread that they have become known as the Missing and Murdered Indigenous Women Crisis (MMIW Crisis). Indigenous communities in both countries often lack the jurisdiction to prosecute violent crimes committed by non-Indigenous offenders against Indigenous victims on Indigenous land. Extractive industries—businesses that establish natural resource extraction projects—aggravate the problem by establishing temporary housing for large numbers of non-Indigenous, primarily male workers on or around Indigenous land (“man camps”). Violent crimes against Indigenous communities around extractive industry projects have in- creased with the establishment of man camps while the current legal systems leave Indigenous communities vulnerable against this clear threat. Both the United States and Canada have endorsed international declarations of Indigenous rights, agreeing to protect Indigenous communities from violence, yet the MMIW Crisis in both countries con- tinues. This Note first argues that both the United States and Canada can best further their commitments to international Indigenous rights while also combatting the MMIW Crisis by allowing Indigenous communities to exercise full criminal jurisdiction over non-Indigenous assailants of Indigenous victims on Indigenous lands. This Note then argues that, until full criminal jurisdiction over non-Indigenous offenders is realized, the United States and Canada can help further Indigenous international rights by providing extractive industries with financial incentives to address their role in enabling the MMIW Crisis.
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