Following the decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), there has been a surge of litigation from the State of Oklahoma seeking to clarify the scope of the McGirt holding. While the Supreme Court of the United States was clear that the holding in McGirt was limited to criminal jurisdiction under the Major Crimes Act, it has sparked subsequent litigation regarding the scope of tribal authority. The pending case of State of Oklahoma v. United States Department of the Interior, which concerns surface mining regulation in Indian Country in Oklahoma, will test the application of McGirt outside of the criminal context. To this end, our article makes three recommendations: (1) in litigation concerning tribal lands, tribes should be a necessary party for litigation to proceed; (2) Congress should invest in pathways for tribes to build the capacity to create and manage their own programs, and (3) when tribal self-determination is encouraged and jurisdictional boundaries are clear, tribes can retain agency over their energy future and are less susceptible to the social harms that have been associated with the development of energy projects.
Here’s that context: In 2007, Mr. Natelson wrote a law review article on the original understanding of the Indian Commerce Clause. Justice Thomas later cited Mr. Natelson’s article in a 2013 concurrence questioning Congress’s authority to enact the Indian Child Welfare Act (ICWA). In 2015, while a graduate student finishing my J.D./Ph.D. in American Legal History at Penn, I published Beyond the Indian Commerce Clause in the YLJ, which revisited original understandings of the sources of federal power over Indian affairs. In the article, I argued that the Founders thought that the federal government’s authority rested not just on the Indian Commerce Clause but on the interplay between multipleconstitutional provisions, including the Treaty Clause, the Territory Clause, the war powers, the law of nations, and the Constitution’s limits on state authority. The article also challenged Justice Thomas’s and Mr. Natelson’s conclusions in what Mr. Natelson later conceded was a “generally respectful” tone. Since the article, a number of subsequent articles by other scholars, some right-of-center and others disagreeing with my conclusions, have similarly challenged Mr. Natelson’s views.
Recommended reading. Professor Ablavsky is the leading legal historian of federal Indian law right now and filed a compelling amicus brief in Brackeen (here).
Tamera Begay and Matthew Fletcher have posted “Ma’ii and Nanaboozhoo Fistfight in Heaven,” forthcoming in the Southwestern Law Review, on SSRN. Here is the abstract (more of a blurb, really):
The Navajo trickster Ma’ii and the Anishinaabe trickster Nanaboozhoo debate the future of tribal economic development [ostensibly reviewing Ezra Rosser’s new book].
Miigwetch, DALL-E, for another weird piece of fake art.
Rumors abound among the academy, practitioners, and the judiciary about the death of Worcester v. Georgia since the Court’s recent decision in Oklahoma v. Castro-Huerta. The misunderstanding is compounded by those that fail to take the time necessary to appreciate the rich nuance of Chief Justice John Marshall’s decision or in the subtle ways the Court has since modified its holding from Worcester. However, the importance of this case, which is integral to our entire system of federal Indian law, to major components of our constitutional system, as well as to our claim to leader in the human rights arena, mandates we proceed with caution and demand precision in its treatment. We cannot presume the abrogation of such a significant case based on veiled rhetoric that stitches together dicta built upon dicta. Instead, we should proceed by acknowledging the broad scope of Worcester’s original holding and carefully examining where and how the Supreme Court has since circumscribed its breadth.
In furtherance of that call, this paper focusses on the Court’s Indian law jurisprudence around the middle of the twentieth century to provide a clearer picture of how the Court has treated Worcester in the modern era and the ways in which it has been limited. That analysis leads to the inescapable conclusion that although the Court has abandoned Worcester’s categorical prohibition on state jurisdiction in Indian country, “the broad principles of that decision came to be accepted as law.” Accordingly, until such time as the Court “openly avow[s]” its intent to overrule Worcester, we must remain faithful to its narrow authorization of state power in Indian country, as well as its broad recognition of tribal sovereignty and federal primacy over the relationship with tribal nations.
This article looks at the enforceability of the Extradition Clause in the federal courts of the United States. In 1861 the Supreme Court held in Dennison that the federal courts could not be used to enforce a request made by one state governor to another state governor for the extradition of a suspected criminal under Article IV Section 1. In 1987 the Supreme Court reversed the Dennison decision and for the first time since the Civil War held that the federal judicial power includes the power to enforce the Extradition Clause. This article takes the position that federal judicial power is limited to cases where the state governor has both territorial and personal jurisdiction over the accused. When an individual is on an Indian reservation, even Article IV does not authorize the governor of a state to enter the reservation and return the accused subject to an extradition request. Article IV’s Extradition Clause provides a constitutional duty for the executive of one state to remit to the power of a sister state someone located within its borders and subject to its jurisdiction. Critical to the exercise of this power is the dual understanding that the individual sought must be both within the state territory and subject to the state’s jurisdiction. Indian country lies outside the general jurisdictional power of the states. States may not enter Indian country and remove persons found there absent cooperation with or permission from the Tribe. Doing so infringes upon the Tribe’s right to make its own laws and be governed by them.
Navajo police officer photographed by Edward Curtis
Here is the abstract:
In June of 2022 the Supreme Court reversed two-hundred years of precedent and held in a 5-4 opinion that states have concurrent criminal jurisdiction over crimes committed by non-Indians against Indians in Indian country. Oklahoma v. Castro-Huerta. In conducting the preemption analysis Justice Kavanaugh’s majority opinion reasoned that while states have a strong interest in prosecuting crimes in Indian country in order to keep the community safe, tribes had functionally no interest because they generally lack criminal jurisdiction over non-Indians. The court then reasoned that the lack of a tribal interest could not preempt the state interest. This article suggests, despite the general prohibition on tribes asserting criminal jurisdiction over non-Indians that was discovered by the Supreme Court in 1978’s Oliphant opinion, tribes can assert criminal jurisdiction over non-Indians who consent to the jurisdiction in tribal court. The argument extends to both affirmative and implied consent and draws its authority from both pre-Oliphant scholarship and precedent as well as from recent development by the Court, Congress, and dicta from the Ninth Circuit. If tribes are able to regularly assert some criminal jurisdiction over non-Indians, then when lower courts apply Castro-Huerta in the future there will be a strong tribal interest to preempt state criminal jurisdiction in Indian country.
Since the first Indian law classes were offered in the late 1960s and early 1970s, law teachers mostly have considered the field a niche specialty, even a backwater, unnecessary to anyone not likely to go into law practice in Indian country. In those days, law teachers focused on treaty rights fights. Treaty rights are a critical but small part of Indian country practice. Lawyers in modern day Indian country handle virtually every kind of matter taught in law schools in addition to the Indian law-specific subject matters. Beginning in the 1990s, American Indian tribal nations started to become critical factors in governmental and economic activity throughout much of the United States. In the 21st century, many law schools offer Indian law — and occasionally offer additional, specialized courses — but generally are still far behind the curve. Worse, when it is offered, the Indian law canon tends to be taught in ways that ignore contemporary tribal agency by emphasizing historical events over modern issues. Modern tribal nations make their own laws. Here I give examples of tribal court cases and tribal statutes law teachers can use to incorporate Indian law into virtually any common law course.
Public health measures to combat COVID-19, especially in the first year before vaccines became widely available, required individuals to be able to access fresh water while remaining isolated from most of their fellow human beings. For the approximately 500,000 households in the United States and over two million Americans who lacked access to reliable indoor running water, these COVID-19 measures presented a considerable added challenge on top of the existing risks to their health from an insecure water supply.
Many of these people were Native Americans, whose Tribes often lack fully adjudicated, quantified, and deliverable rights to fresh water. To highlight the critical role that water rights played in Tribes’ capacities to cope with the pandemic, this essay compares the Klamath Tribes in Oregon, who after 40 years of litigation have fairly securely established themselves as the senior water rights holders in the Klamath River Basin, to the Diné (Navajo Nation), whose reservation—the largest in the United States—covers well over 27,500 square miles of Arizona, Utah, and New Mexico but largely lacks quantified water rights or the means to deliver water to households. While access to water was not the sole factor in these two Tribes’ vastly different experiences with COVID-19, it was an important one, underscoring the need for states and the federal government to stop procrastinating in actualizing the water rights for Tribes that have been legally recognized since 1908.
This Article is the first of a two-part investigation into the Indian law doctrine of reservation diminishment/disestablishment, examining Supreme Court decisions in this area in light of insights gathered from the collected papers of individual Justices archived at the Library of Congress and various university libraries. The Article first addresses Seymour v. Superintendent (1962) and Mattz v. Arnett (1973), observing that these first two diminishment/disestablishment cases are modern applications of basic, longstanding principles of Indian law which are highly protective of Indigenous people’s rights and tribal sovereignty. The Article then examines in detail DeCoteau v. District County Court, the anomalous 1975 decision in which the Supreme Court held that an 1889 land-sale agreement between the United States and the Sisseton-Wahpeton Dakota Indians, which Congress ratified in 1891, had abolished the boundaries of the Lake Traverse Reservation in South Dakota and North Dakota, a reservation that had been established as the Indians’ “permanent reservation” home in an 1867 treaty. The Article critiques DeCoteau in view of the historical context of the 1862 U.S.-Dakota War, an explosive conflict that resulted in the forced removal of the Dakota people from their reservation and aboriginal homelands in Minnesota and the abrogation of all U.S.-Dakota treaties, including treaty rights that guaranteed annual payments essential for the Indians’ subsistence and survival. The Article brings into view the full scope of the negotiations between the Sisseton- Wahpeton people and U.S. commissioners in 1889, demonstrating that the Dakota people never consented to any reduction or elimination of reservation boundaries when they agreed, under desperate circumstances, to sell to the United States the unallotted lands within the reservation. The Article further surveys additional evidence, unaddressed by the Supreme Court, regarding the 1891 Act’s legislative history, including numerous congressional debates and provisions of reports of the Senate and House of Representatives, as well as evidence from Executive Branch sources, which collectively show that the 1891 Act did not shrink or terminate the reservation. The Article posits that DeCoteau, which scholars recognize as having initiated a “magic language” mode of analysis in the reservation diminishment/disestablishment area, cannot be reconciled with fundamental principles of Indian law. Finally, the Article inspects and discusses documents from the archived papers of the Justices who took part in DeCoteau, unraveling clues that may help account for the Supreme Court’s aberrant decision.
Turtle Talk 
You must be logged in to post a comment.