This Note analyzes for the first time how McGirt v. Oklahoma could revive aboriginal-title land claims against the United States and create an opening for Land Back litigation. It argues that McGirt directs lower courts to enforce aboriginal title’s congressional-intent requirement strictly and renews the relevance of an overlooked case from 2015, Pueblo of Jemez v. United States. In Pueblo of Jemez, the Tenth Circuit unknowingly demonstrated how insisting on clearer proof of congressional intent to extinguish title would implement McGirt’s holding and remove the jurisdictional bars—sovereign immunity and preclusion—that have prevented aboriginal-title litigation.
Seth Davis, Eric Biber & Elena Kempf have published “Persistent Sovereignties” in the University of Pennsylvania Law Review. Here is the abstract:
From the first days of the United States, the story of sovereignty has not been one of a simple division between the federal government and the states of the Union. Then, as today, American Indian tribes persisted as self-governing peoples with ongoing and important political relationships with the United States. And then, as today, there was debate about the proper legal characterization of those relationships. The United States Supreme Court confronted that debate in McGirt v. Oklahoma when, in an opinion by Justice Neil Gorsuch, it held that the reservation of the Muscogee (Creek) Nation “persists today.” The Court’s recognition of the persistence of Tribal sovereignty triggered a flurry of critical commentary, including from federal lawmakers who share Justice Gorsuch’s commitment to originalism. But the early history of federal Indian law supports the persistence of tribal sovereignty.
Building on the ground-breaking work on the revitalization of Indigenous laws ongoing over the past decade, this article seeks to contribute to our understanding of how Indigenous languages can be used to recover Indigenous laws. It posits that there is not one single linguistic method, but at least five: 1) the ‘Meta-principle’ method; 2) the ‘Grammar as revealing worldview’ method; 3) the ‘Word-part’ method; 4) the ‘Word-clusters’ method; and 5) the ‘Place names’ method. Using the Mìgmaq language to illustrate, the article explains each method and provides examples of how they can be used to inform Indigenous law revitalization. The article also shows that one does not have to be a fluent, first-language speaker to engage with linguistic methods for Indigenous law revitalization, by highlighting the various published resources like dictionaries and lexicons, reference and teaching texts, atlases, and more, that can be harnessed to engage in this work. This makes engaging with the linguistic methods accessible to the many Indigenous peoples who, because of the impacts of colonialism, are only starting to re-learn their Indigenous language. This revelation should give greater confidence to the non-fluent that they too can play a role in the revitalization of both their language and laws.
The goal of this Essay for the Wisconsin Law Review’s Symposium on the Restatement of the Law of American Indians is to develop a framework on the durability of this Restatement. The aadizookaanag are unusually durable in terms of their transmission of underlying, foundational lessons, but the stories change all the time. The earth diver story explores and describes the critically important connection between the Anishinaabeg and the creatures of Anishinaabewaki, but only at a very broad level of generality. How the Anishinaabe tribal government in the twenty-first century translates those principles into modern decision- making requires new analysis, new stories. Additionally, old aadizookaanag may fade into irrelevance, even disrepute, as times and conditions change.
Law is the same. Restatements are intended to be durable and persuasive, supported by the great weight of authority, but not permanent. There are provisions in the Indian law Restatement I believe are truly timeless, while the law restated in some sections is likely to change a great deal over the next few decades. I choose four sections in the Restatement and match each with one of the four directions sacred to the Anishinaabeg. The youngest direction, Waabanong, the east, is the most likely to change. The next youngest, Zhaawanong, the south, is older, but still subject to change. Niingaabii’anong, the west, is still older, wiser, less likely to change, but also very dark in its philosophies. Kiiwedinong, the north, is the oldest, wisest, and most durable, yet distant. A Restatement section includes blackletter law, law that is well-settled and indisputable. The reporters’ notes that accompany the blackletter law constitute the legal support for that statement of law. The stronger the legal support, the more durable the black letter.
In the east, I choose one of the plainest, easiest-to-restate principles of federal Indian law, the bar on tribal criminal jurisdiction over non- Indians. In the south, I choose the law interpreting the federal waivers of immunity allowing tribes to sue the United States for money damages. In the west, I choose the darkest, yet perhaps the most foundational, principles, the plenary authority of Congress in Indian affairs. For the north, I choose tribal powers, the oldest and most durable of all of the principles in the Restatement.
Almost 200 years ago, in the Cherokee Nation cases, Chief Justice John Marshall famously described Indian tribes as “domestic dependent nations.” It’s a catchy phrase, but it falls far short of a clear description of the complex relationship between the Indian tribes, bands, nations, and similar groups in the territory encompassed by the United States and the government of that territory. It also elides the equally complex issue of the relationship between Indian tribes and the constituent states of the United States. In the end, the problem may be that modern notions of self- determination, integrity of national boundaries, and conquest simply do not map well onto the history of our part of the North American continent from the late fifteenth century to the present. The best we can do is to articulate rules, canons of interpretation, and principles from the law that has developed in the hope of clarifying and settling the law we now have.
No one could have undertaken that task with more sensitivity, expertise, and objectivity than the Reporters of the American Law Institute’s soon-to-be-published Restatement of the Law of American Indians—Professors Matthew L.M. Fletcher and Wenona T. Singel and Attorney Kaighn Smith, Jr. Indeed, this may have been one of the most challenging Restatements the ALI has ever undertaken. Most of the time, the common law (or interstitial law relating to a statute) has developed organically in the state and federal courts, and the job of the Reporters is to distill the rules that have emerged. This isn’t always easy, of course: sometimes no single rule floats to the top of the barrel, and so the Reporters must choose the one that seems best to represent the state of the law. Sometimes (though less often) the Reporters propose that the ALI adopt a minority position that is better reasoned or that seems to capture a trend of thinking.
Effective April 21, 2016, the Department of the Interior adopted new right-of-way regulations at 25 C.F.R. Part 169 that fundamentally change the Department’s historical approach. While the Right of Way Act still requires that the BIA approve rights-of-way, the new rules reflect a reinterpretation of the federal government’s trust responsibility with respect to rights-of-way. Instead of the federal government continuing to retain virtually all regulatory authority and substituting its judgment for that of tribes, the rules explicitly support tribal decision-making and the exercise of tribal regulatory authority.
This Essay briefly reviews the history of rights-of-way through Indian country, describes the new paradigm adopted under the 2016 regulations, and suggests how tribes can harness that paradigm to strengthen tribal sovereignty and generate revenue.
In the current model of federal-Indian relations, the United States claims a plenary legislative power, as putative guardian, to regulate Indian tribes. Under this model, tribes are essentially wards in a state of pupilage. But the federal-tribal relationship was not always so. Originally, the federal government embraced, even promoted, a more robust model of tribal sovereignty in which federal-Indian treatymaking and diplomacy figured prominently. Through treaties, the United States and tribes negotiated territorial boundaries, forged alliances, facilitated trade, and otherwise managed their relations. In 1871, Congress attempted to put an end to federal-Indian treatymaking by purporting to strip tribes of their status as legitimate treaty partners. In a rider to the 1871 Appropriations Act, Congress prohibited the recognition of tribes as sovereign entities with whom the United States could negotiate treaties. Since that time, the 1871 Act and the plenary power-pupilage model it entrenched have grown deep roots in federal Indian law and the policies of the United States. Congress has aggrandized its role in tribal life at the expense of tribal sovereignty, and the coordinate branches of the federal government have acquiesced in this foundational shift.
The literature of federal Indian law has wrestled with the doctrine of plenary power, contemplated the fate of the federal-tribal treaty relationship, and questioned the constitutionality of the 1871 rider. This Article posits new arguments for the unconstitutionality of the 1871 Act, uprooting the presumptions underlying the Act and revitalizing the prospect of federal-Indian treatymaking. Two recent developments provide an opportunity for such a transformation. In Zivotofsky v. Kerry, the Supreme Court held that the President alone possesses the power to recognize foreign states and governments. While Zivotofsky was a landmark case for U.S. foreign relations law, its potential significance for federal Indian law has gone underappreciated. Zivotofsky did not directly address the locus of power to recognize tribal sovereignty to enter treaties, but it prompts the question and provides a blueprint for arriving at an answer. Engaging that blueprint, this Article argues that the President possesses the exclusive power to recognize tribes’ sovereign capacity to enter treaties. The result: The 1871 Act is unconstitutional because it attempts to limit that power. In our view, the President can and should unilaterally reengage in federal-Indian treatymaking, revitalizing treatymaking and reanimating the sovereignty model of federal-Indian relations.
A second development, the Supreme Court’s decision in McGirt v. Oklahoma, is less fundamental to the argument but also significant for revitalizing tribal sovereignty. In McGirt, the Court recognized the ongoing vitality of federal-Indian treaties that were entered when the sovereignty model prevailed, strengthening both claims to tribal sovereignty and the viability of treatymaking in the federal-Indian relationship.
The implications of these developments are significant. Deracinating the 1871 Act disrupts the dominance of the plenary power doctrine and pupilage model with their attendant abuses, more fully realizes the promise of the United States’ policy of Indian self-determination and commitment to international norms, and generates positive ripples for Indigenous-state relationships across the globe.
HIGHLY recommended.
End of Federal-Tribal Treatymaking & Great Chicago Fire of 1871— Coincidence or Correlation?
Despite studies concluding ICWA has been a successful law to curb the crisis of child removal in Indian country when implemented correctly, a significant number of attorneys, think tanks, and politicians argue that ICWA actually harms Native children and should be repealed. Oth- ers argue that ICWA has served its purpose and is no longer necessary. This article considers how newspaper editorials perpetuate misinformation about ICWA, its history and its purpose. Moreover, we explore how anti-ICWA authors employ “words of colonialism”—in particular, the use of derogatory words and phrases to portray Native people as bad parents and Tribal Nations as dysfunctional. Providing inaccurate and racist characterizations of ICWA is one of the primary tactics used by editorials to delegitimize ICWA. Emotionally triggering and wholly inaccurate language is often employed as a sensationalist method to grab the reader’s attention by presenting the law in terms of clear-cut morality.
Turtle Talk 
You must be logged in to post a comment.