Alex Skibine on Legislating Tribal Civil Jurisdiction over Nonmembers [now published]

Alex Tallchief Skibine has published “Incorporation Without Assimilation: Legislating Tribal Civil Jurisdiction over Nonmembers” in the UCLA Law Review Discourse.

The abstract:

For the last forty years the U.S. Supreme Court has been engaged in a measured attack on the sovereignty of Indian tribes when it comes to tribal court jurisdiction over people who are not members of the tribe asserting that jurisdiction. The U.S. Congress has already enacted legislation partially restoring some tribal courts’ criminal jurisdiction over nonmembers. This Article proposes to legislatively reconfirm the civil jurisdiction of tribal courts over such nonmembers. After examining the Supreme Court’s jurisprudence in this area and summarizing the Court’s main concerns with such tribal jurisdiction, this Article explores various legislative options before settling on a preferred course of action. The proposal set forth in the last part of this Article would reconfirm tribal court civil jurisdiction over nonmembers provided the tribal courts has established personal jurisdiction over the parties. However, tribal courts’ determinations on this subject would be appealable to federal courts. Furthermore, the Article proposes to allow nonmembers being sued in tribal courts the option of removing their cases to federal courts under certain conditions.

Sarah Deer and Elizabeth Kronk Warner on Trump, Indian Country, Sexual Assault, and Extractive Industries

Sarah Deer and Elizabeth Ann Kronk Warner have posted “Raping Indian Country” on SSRN. Here is the abstract:

In this article, we have examined the policies of the Trump Administration as they relate to extractive development on and near Indian country, and policies related to the protection of Native people from rape and sexual assault. As demonstrated above, the Administration’s policies are likely to increase both the environmental and physical vulnerabilities of Native people. Native people will not only likely face exasperated physical insecurity, but their environments will likely be increasingly stripped on natural resources. As a result, the raping of Indian county continues. But, this article is not without hope. At least two ways forward, improvements upon the status quo exist. Tribal governments possess the requisite capacity to address the environmental and criminal challenges presented here. Further, changes to federal law, such as the Oliphant fix suggested above, provide meaningful opportunities for change. The rape of Indian country envisioned in this article is not a foregone conclusion; together change can protect our land and bodies.

Highly recommended.

Robert Anderson on the Katie John Litigation

Robert T. Anderson has published “The Katie John Litigation: A Continuing Search for Alaska Native Fishing Rights After ANCSA” in the Arizona State Law Journal (PDF).

Highly recommended!!!!

Alex Skibine on Legislating Tribal Civil Jurisdiction Over Non-Members

Alexander Tallchief Skibine has posted a very interesting paper, “Incorporation Without Assimilation: Legislating Tribal Civil Jurisdiction Over Non-Members,” on SSRN. It is forthcoming in the UCLA Law Review Discourse.

The abstract:

For the last 40 years the Supreme Court has been engaged in a measured attack on the sovereignty of Indian tribes when it comes to tribal court jurisdiction over people who are not members of the tribe asserting that jurisdiction. The Congress has already enacted legislation partially restoring some tribal courts’ criminal jurisdiction over non-members. This Essay proposes to legislatively reconfirm the civil jurisdiction of tribal courts over such non-members. After examining the Supreme Court’s jurisprudence in this area and summarizing the Court’s main concerns with such tribal jurisdiction, this Essay explores various legislative options before settling on a preferred course of action. The proposal set forth in the last part of this Essay would reconfirm tribal court civil jurisdiction over non-members provided the tribal courts has established personal jurisdiction over the parties. However, tribal courts’ determinations on this subject would be appealable to federal courts. Furthermore, the Essay proposes to allow non-members being sued in tribal courts the option of removing their cases to federal courts under certain conditions.

Danielle Delaney on Environmental Law, Indigenous Identity, and #NoDAPL

Danielle Delaney has published “Under Coyote’s Mask: Environmental Law, Indigenous Identity, and #NoDAPL” in the Michigan Journal of Race & Law.

The abstract:

This Article studies the relationship between the three main lawsuits filed by the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe, and the Yankton Sioux Tribe against the Dakota Access Pipeline (DaPL) and the mass protests launched from the Sacred Stone and Oceti Sakowin protest camps. The use of environmental law as the primary legal mechanism to challenge the construction of the pipeline distorted the indigenous demand for justice as U.S. federal law is incapable of seeing the full depth of the indigenous worldview supporting their challenge. Indigenous activists constantly re-centered the direct actions and protests within indigenous culture to remind non-indigenous activists and the wider media audience that the protests were an indigenous protest, rather than a purely environmental protest, a distinction that was obscured as the litigation progressed. The NoDAPL protests, the litigation to prevent the completion and later operation of the pipeline, and the social movement that the protests engendered, were an explosive expression of indigenous resistance—resistance to systems that silence and ignore indigenous voices while attempting to extract resources from their lands and communities. As a case study, the protests demonstrate how the use of litigation, while often critical to achieving the goals of political protest, distorts the expression of politics not already recognized within the legal discourse.

New Indian Law Scholarship on SSRN

Here:

Law and Science Series No. 1: The Contemporary Methodology for Claiming Reserved Instream Flow Water Rights to Support Aquatic Habitat

Environmental Law, Forthcoming
Number of pages: 29 Posted: 19 Jul 2019
Working Paper Series

The Historical Evolution of the Methodology for Quantifying Federal Reserved Instream Water Rights for American Indian Tribes

Environmental Law, Forthcoming
Number of pages: 45 Posted: 19 Jul 2019
Working Paper Series

Traditional Ecological Rulemaking

Stanford Environmental Law Journal, Vol. 35, No. 2, 2016
Number of pages: 55 Posted: 01 Aug 2019
Accepted Paper Series

Lobbying as a Strategy for Tribal Resilience

2018 BYU Law Review 1159
Number of pages: 73 Posted: 14 Aug 2019
Working Paper Series

Judge Murphy’s Indian Law Legacy

103 Minnesota Law Review 37 (2018)
Number of pages: 28 Posted: 17 Aug 2019
Accepted Paper Series

Learning from Tribal Innovations: Lessons in Climate Change Adaptation

University of Utah College of Law Research Paper No. 328
Number of pages: 35 Posted: 10 Sep 2019 Last Revised: 13 Sep 2019
Working Paper Series

Tribal Data Governance and Informational Privacy: Constructing ‘Indigenous Data Sovereignty’

80 Montana Law Review 229 (2019), Arizona Legal Studies Discussion Paper No. 19-19
Number of pages: 41 Posted: 17 Sep 2019
Accepted Paper Series

Self-Determination, the Trust Doctrine, and Congressional Appropriations: Promise and Pitfalls of Federal Disentanglement from Indian Health Care

Fédéralisme et gouvernance autochtone/Federalism and Aboriginal Governance (Ghislain Otis & Martin Papillon eds., 2013),
Number of pages: 22 Posted: 15 Jul 2019
Accepted Paper Series

Chicago Law Review Comment on Limiting State Eminent Domain Power under 25 USC § 357

Addison W. Bennett has published “Partially Tribal Land: The Case for Limiting State Eminent Domain Power under 25 USC § 357” in the University of Chicago Law Review (PDF).

The abstract:

When a state utility wishes to cross land located within a Native American reservation, but the landowners refuse to allow it, the utility in most circumstances may exercise eminent domain over the land. Under the authority of a federal statute, 25 USC § 357, states may generally condemn allotments, plots owned by individuals that lie within the sovereign boundaries of a tribal reservation. Courts have long recognized that the state authority to condemn these allotments under § 357 arises from the principle that individually owned allotments are no longer “tribal” land and, as a result, they are not protected by tribal sovereignty.

Congress’s failure to transition away from the allotment system has resulted in an ownership structure for certain plots of reservation land that it did not antic- ipate when it enacted § 357. Today, not all allotments are held entirely by individu- als, and many now contain fractional, undivided interests that belong to tribes themselves. This status of joint ownership between individuals and tribes, which this Comment refers to as “partially tribal,” leads to considerable complications with respect to the scope of § 357. Courts have routinely held that land owned by a sover- eign Native American tribe is not subject to state condemnation and that this prin- ciple protects tribal interests in allotments. Unresolved, however, is whether a tribal interest in an allotment—which can be as small as a fraction of 1 percent—should immunize even the nontribal interest in the plot from state condemnation proceed- ings. In other words, should a fractional tribal interest place an entire parcel out of the state’s reach?

This Comment argues that it should. The courts that have attempted to allow condemnations to proceed against partially tribal allotments run into the problem that all ownership interests in an allotment are undivided; each owner holds an undivided share of the whole parcel. This means there is no way to divide the tribal interests from the nontribal ones without effecting some kind of incursion on a tribal land interest without the tribe’s or Congress’s consent, a result that principles of tribal sovereignty squarely reject. This Comment recognizes that Congress’s intent when it passed § 357 was to eliminate tribal landholdings, but it argues that Congress has since changed course such that courts should disregard that original intent. This Comment also concedes that diminishing eminent domain power may lead to holdout problems, though it argues that protecting tribal sovereignty is the more important interest. Consistent with the principle that states may not diminish any tribal sovereignty without Congress’s consent, this Comment concludes that a state utility has multiple avenues for seeking access to a partially tribal allotment, including opportunities for negotiation with the tribe and the federal government. Courts should not permit states to use § 357 unilaterally to divest a nonconsenting tribe from its interest in land.

Aila Hoss on Tribal Public Health Data and Surveillance

Aila Hoss has posted her paper “Exploring Legal Issues in Tribal Public Health Data and Surveillance” on SSRN. Here is the abstract:

Tribes are sovereign nations with a government-to-government relationship with the United States. Within the United States, there are 573 federally recognized Tribal nations with distinct governments, cultures, and histories. Each Tribe exercises both political sovereignty and cultural sovereignty through Tribal governance and their unique cultural teachings. As part of the exercise of this sovereignty, Tribes have the inherent authority to engage in public health activities that support the safety and welfare of their citizens. An essential component to public health practice includes the collection and surveillance of health data. Surveillance data allows for the identification of health issues as well as instances in which certain populations are being disproportionately burdened by these health issues. This data is essential to effective policy making. Law is the foundation of public health practice, including the underpinnings of public health data collection and surveillance and ensuring the privacy of such data. Much has been written on public health data and surveillance at the state and local level. Yet, Tribal law and the federal laws that define the relationships between Tribes, states, and the federal government add an additional complexity to the collection and surveillance of law for American Indian and Alaska Natives. This article explores legal issues in Tribal data and surveillance. First, this article provides a summary of Tribal public health and health care systems. Next, it outlines surveillance laws and practical challenges in Tribal surveillance. Finally, it describes some of the legal strategies used to promote effective data collection and surveillance.

New Scholarship on Tribal Public Health Law

Aila Hoss has posted “A Framework for Tribal Public Health Law” on SSRN. Here is the abstract:

Law plays an integral role in advancing public health. Public health advancements in areas such as vaccine-preventable diseases, tobacco control, and motor vehicle safety have been driven by legal interventions, such as vaccination requirements for school attendance, smoke-free laws, and seat belt laws. The field of public health law continues to expand in the depth and breadth of the study of law as a tool in advancing public health. However, much of this research has focused on the state and local governments and does not contemplate the cultural, legal, and practical realities of Tribes and American Indian and Alaska Native communities.

The federal government recognizes 573 Tribes within the boundaries of the United States and maintains a government-to-government relationship with these Tribes. Unlike state and local governments, Tribes are sovereign nations and have the inherent authority to “make their own laws and be ruled by them.” This unique governing structure and relationship with the United States merits its own investigation and research in terms of public health law. Additionally, evidence has shown that American Indian and Alaska Native communities are disproportionately burdened by a variety of health outcomes including diabetes, unintentional injuries such as motor vehicle injuries, and chronic liver disease, which further supports the value of developing a framework in which to understand Tribal public health law through a Tribal lens, rather than state and local public health authorities.

This article offers a framework for public health law as applied to Tribes, whose history, culture, legal structure, and population health outcomes differ greatly from other jurisdictions. Additionally, the complexities of both federal Indian law and emerging public health crises establish a need to evaluate these issues in a systematic way. Part I of this article provides background on public health law, highlighting the insufficiency of existing scholarship in Tribal public health. Part II proposes a framework for understanding and researching Tribal public health law based on Tribal sovereignty, federal Indian law, Tribal law, and an analysis of structural violence. Finally, Part III concludes with a case study to demonstrate the need for establishing a separate framework for Tribal public health law and how this framework can support thoughtful and rigorous research in this area.