Here.
Link to the opinion here.
Scholarship
Mitchell Forbes on Powers of Alaska Tribes without Reservations
Mitchell Forbes has published “Beyond Indian Country: The Sovereign Powers of Alaska Tribes Without Reservations” in the Alaska Law Review. PDF
Here is the abstract:
The Alaska Native Claims Settlement Act of 1971 (ANCSA) devised a land entitlement system markedly different from the Indian reservation system that prevailed in the Lower 48 states. It directed the creation of twelve, for-profit Alaska Native regional corporations and over 200 private, for-profit Alaska Native village corporations, which would receive the bulk of Native land in the state. This corporate model left nearly all tribes in Alaska without a land base. As such, there is very little Indian Country land in the state over which tribes can exercise territorial-based sovereignty. Yet, the Supreme Court has long recognized the power of tribes to exercise membership-based jurisdiction. This Comment analyzes a range of state and federal court decisions addressing the authority of tribes and argues that Alaska tribes, through membership-based jurisdiction, can exercise various sovereign powers, like the exclusion of nonmembers. Importantly, this membership-based jurisdiction does not depend on lands over which tribes can exercise jurisdiction. Therefore, the exclusionary orders imposed by several Alaska Native tribes during the Covid-19 pandemic in 2020 were valid exercises of the tribes’ sovereign powers.
Highly recommended.
Sarah Deer on Feminist Jurisprudence in Tribal Courts
Sarah Deer has published “Feminist Jurisprudence in Tribal Courts: An Untapped Opportunity” in the Yale Journal of Law and Feminism.
An excerpt:
What if every gendered legal issue was not burdened by over 200 years of patriarchal and racist precedent? How would feminists craft legal practices and structures in a way that would be grounded by a clear understanding of the harms of oppression and subjugation? These questions are not just rhetorical; this essay argues that a fresh perspective is possible in the context of an Indigenous feminist jurisprudence. Indigenous feminist legal theory (IFLT) is in its nascent stages as a contemporary academic discipline and praxis. It has largely been elucidated by legal scholars in Canada, including Emily Snyder, Val Napoleon, and John Borrows. Snyder explains that IFLT lies at the intersection of feminist legal theory, Indigenous feminist theory, and Indigenous legal theory.
Kirsten Carlson on the Democratic Difficulties of Castro-Huerta
Kirsten Matoy Carlson has published “The Democratic Difficulties of Oklahoma v. Castro-Huerta” in New Political Science. Here is the abstract:
The Supreme Court, some commentators argue, is at its most undemocratic since the Lochner Era in the 1930s. They point to the Supreme Court’s majority opinion in Dobbs v. Jackson Women’s Health Organization, which departs from public opinion on abortion and longstanding constitutional precedence. Dobbs, however, is not an outlier. The Supreme Court made a similar move in Oklahoma v. Castro-Huerta. The majority opinion questioned almost 200 years of constitutional interpretation and several decades of congressional policy to enable state governments to exercise criminal authority over non-Indians in Indian Country. This article compares the majority opinion in Castro-Huerta to congressional policy to explore the democratic and constitutional difficulties that can arise when the Supreme Court refuses to defer to Congress—the democratically elected and constitutionally appointed institution for making federal Indian policy. It reveals how the Court’s undemocratic turn extends beyond cases involving individual rights.
American Indian Law Journal, Vol. 11, No. 2
Here:
Current Issue: Volume 11, Issue 2 (2023)
Articles
Toward a Tribal Role in Groundwater Management
Alexandra Fay
Change by Drips and Drabs or No Change at All: The Coming UNDRIP Battles in Canadian Courts
Kevin Gray
Case Law on American Indians
Thomas P. Schlosser
Dual Taxation – Unbalanced and Arbitrary
Benjamin M. Simon
Oil, Indifference, and Displacement: An Indigenous Community Submerged and Tribal Relocation in the 21st Century
Jared Munster
Leeds, Miller, Washburn, and Beetso on Castro-Huerta
Stacy Leeds, Robert J. Miller, Kevin K. Washburn, and Derrick Beetso have posted “Oklahoma v. Castro-Huerta — Rebalancing Federal-State-Tribal Power,” previously published in the Journal of Appellate Process and Practice, on SSRN. Here is the abstract:
The Supreme Court’s unexpected decision in Oklahoma v. Castro-Huerta in 2022 overturned established precedent and scrambled long-settled expectations about the division of criminal jurisdiction in Indian country. In this panel discussion shortly after the decision was issued, the authors provided a “hot take” on the Castro-Huerta decision and discussed its impact on criminal justice in Indian country and on federal Indian law more broadly.
We previously posted this symposium issue here.
Greg Ablavsky on Castro-Huerta
Gregory Ablavsky has posted “Too Much History: Castro Huerta and the Problem of Change in Indian Law,” forthcoming in the Supreme Court Review, on SSRN. Here is the abstract:
The Supreme Court’s decision last Term in Castro-Huerta v. Oklahoma dramatically rewrote the rules of criminal jurisdiction in federal Indian law. For the first time since 1882, the Court judicially expanded the scope of state criminal jurisdiction in Indian country, finding that states hold jurisdiction over Indian-on-non-Indian crime concurrently with the federal government. In reaching this conclusion, the Court exemplified the subjectivism that scholars have criticized in the Court’s Indian law jurisprudence for decades. The opinion distinguished or cast aside at least six prior decisions where the Court had seemingly reached the opposite conclusion, as well as concluding that the Court had already substantially limited the Court’s foundational holding in Worcester v. Georgia (1833) that Indian country ordinarily lies outside state authority.
Building on these earlier critiques, this Article uses Castro-Huerta to examine a less explored flaw in the Court’s Indian law rulings—what I call the problem of “too much history.” In Indian law, judges and litigants must make sense of over two centuries of jurisdictional debates, recorded largely not in statutes or constitutional provisions but in dozens of shifting Supreme Court decisions. The key question in Castro-Huerta, and the core of the dispute between majority and dissent, was change–how the law on state jurisdiction in Indian country had shifted over time. But the sheer mass of history makes it hard for the Justices to identify legitimate legal change in Indian law.
This conundrum leads to two broad types of judicial use of history in Indian law. “Good” history decisions, epitomized by this Term’s decision in Ysleta del Sur Pueblo v. Texas, employ specific context to examine narrowly defined legal questions. By contrast, “bad” history opinions, exemplified by Castro-Huerta, turn to the past as an independent source of law, ask broad, unanswerable questions of it, and provide no clear way to assess the inevitable heap of conflicting evidence.
Having laid out this challenge, the Article reexamines the question of the specific historical change at the core at Castro-Huerta. Rather than the majority’s narrative of abandonment and the dissent’s narrative of continuity, I think a more accurate account of what the Court has done with respect to state jurisdiction in Indian country is translation—trying to make sense of older legal principles within a new jurisprudential frame. But this approach makes the Court’s decisions in this area especially prone to misreading and selective citation, as Castro-Huerta underscored.
New Student Scholarship on Indian Country Criminal Sentencing
Nasrin Camilla Akbari has published “The Gladue Approach: Addressing Indigenous Overincarceration Through Sentencing Reform” in the NYU Law Review. PDF
Here is the abstract:
In the American criminal justice system, individuals from marginalized communi- ties routinely face longer terms and greater rates of incarceration compared to their nonmarginalized counterparts. Because the literature on mass incarceration and sentencing disparities has largely focused on the experiences of Black and Hispanic individuals, far less attention has been paid to the overincarceration of Native peo- ples. Yet there are clear indications that Native peoples are both overrepresented within the criminal justice system and subject to unique sentencing disparities as compared to other ethnicities. While these issues are partly motivated by traditional drivers of criminal behavior, including access barriers to housing, employment, and education, this Note argues that there is a greater systemic issue at play: the enduring legacy of colonialism. Accounting for—and correcting—this legacy in the criminal justice system is a complex task, though not an impossible one. For example, over the past twenty years, the Canadian criminal justice system has implemented a novel, remedial sentencing approach to address the overincarcera- tion of Aboriginal offenders: the Gladue approach. Recognizing the extent to which the Canadian legal system has failed to account for the unique needs, exper- iences, and circumstances of Aboriginal offenders, the Gladue approach mandates an individualized and contextualized approach to sentencing, one which prioritizes community-based alternatives to incarceration and emphasizes restorative justice. This Note proposes two legal pathways by which to transplant the Gladue approach to the American criminal justice system. In so doing, it offers the first comprehensive analysis of the normative and constitutional implications of applying the Gladue approach to the sentencing of Native peoples within the United States. While the approach has challenges and shortcomings, it is neverthe- less a powerful tool by which the American criminal justice system can begin to reckon with its colonial past and present.
Michael McNally on Indian Sacred Sites
Michael D. McNally has published “The Sacred and the Profaned: Protection of Native American Sacred Places That Have Been Desecrated” in the California Law Review. PDF
Here is the abstract:
From Standing Rock to San Francisco Peaks, Native American efforts to protect threatened sacred places in court have been troubled by what this Article identifies as the profanation principle: a presumption that places already profaned or degraded by development or pollution can no longer be sufficiently sacred to Native peoples to merit protection. When the Supreme Court of Hawai’i rejected Native Hawaiian challenges to a massive new telescope on Mauna Kea because its summit was already developed, the sole dissenting justice termed it the “the degradation principle”: a view that because eleven telescopes had already despoiled the summit, the new telescope would cause no substantial adverse impacts on natural and cultural resources. This Article draws on religious studies training to show that, from the Ganges River to Jerusalem’s Western Wall, what makes the holy places of the world’s religions sacred seldom hinges on their natural purity. A presumption that Native American sacred places must be pristine to be authentically sacred is discriminatory, rooted in romanticized stereotypes of Native religions as nature piety rather than complex systems of obligation and relationship to sacred places. If the profanation principle seldom manifests as an explicit legal reason for an outcome, the Article demonstrates how consistently it plays out in cases under religious liberty, historic preservation, and environmental law. The Article suggests moving beyond the profanation principle, likening desecrated sacred places to sick relatives in need of healing and intensifying Native obligations to defend the sacred.
New Student Scholarship on Tribal Citizenship and Blood Quantum
Ashleigh Lussenden has published a Note, “Blood Quantum and the Ever-Tightening Chokehold on Tribal Citizenship: The Reproductive Justice Implications of Blood Quantum Requirements,” in the California Law Review. PDF
The abstract:
Blood often serves as the basis for identity for many groups in the United States. Native Americans, however, are the only population in which blood is a requirement for collective belonging and can be the determining factor for whether one receives tribal benefits and services. Many Tribal Nations use blood quantum, the percentage of Indian blood one has, as a bright-line rule to determine qualification for tribal membership. Initially established as a colonial tool of dispossession and assimilation, tribes adopted blood quantum to ensure the preservation of culture and community.
This Article contends that tribal adoption of blood quantum limits tribal members’ reproductive autonomy and violates the tenets of reproductive justice. Forcing tribal members to consider the blood quantum of their future children limits individual choice of partner and the manner in which tribal members choose to build their families. This limitation of autonomy and violation of reproductive justice principles is especially stark when analyzed in combination with contemporary pressures on Native conception and parenting, including urban migration, dysgenic environmental impacts on fertility, sexual violence, and inadequate, underfunded, and abusive reproductive healthcare. Collectively, these pressures decrease fertility, the number of available partners, and the ability for Native people to conceive and parent within their own communities.
By applying the principles of reproductive justice, Tribal Nations may begin to reassess what belonging means in Native communities and how tribal membership policies can support reproductive autonomy. The current rise of nation-building and concentrated push for self-determination in Native communities provides a unique opportunity to interrogate the priorities of tribal membership requirements and reimagine inclusion and collective belonging in Native Nations.
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