Scholarship

Grant Christensen on Predicting Supreme Court Behavior in Indian Law Cases

Matthew L.M. Fletcher

Grant Christensen has posted his paper, “Predicting Supreme Court Behavior in Indian Law Cases,” on SSRN.

Here is the abstract:

Since 1959 the Supreme Court has heard an average of 2.6 Indian law cases each term out of a recent average of approximately 80 cases. This paper attempts to identify which factors may be influencing the outcome of Indian law opinions by creating a new dataset of 156 Indian law cases and testing twelve potentially explanatory variables using logistic regression analysis.

Unexpectedly, the paper concludes that Chief Justice may play a determinative role in Indian law opinions – exceeding the importance of the office in most other analysis of the Court. This is true even though the Chief Justice has changed four time over the course of the study, indicating that it is the office of Chief Justice, and not the individual holding the office, that has the observed effect.

Overall the logistic regression model was able to explain more than 70% of the variance in the outcome of Indian law opinions, indicating that the independent variables provided a robust survey of the problem. In addition to the role of the Chief Justice, other important variables when it comes to explaining the Supreme Court’s behavior on Indian law questions include whether the tribe was the appellant, whether the case was decided by a single vote, whether a jurisdictional dispute between a state and tribe was at the center of the controversy and whether the case arose from Alaska or Hawaii.

Iowa Law Review Student Scholarship on How NHPA Fails Tribal Interests

Matthew L.M. Fletcher

Amanda M. Marincic has published “The National Historic Preservation Act: An Inadequate Attempt to Protect the Cultural and Religious Sites of Native Nations” in the Iowa Law Review.

An excerpt:

Beginning in 2016, the Standing Rock Sioux Tribe engaged in a highly-publicized, year-long legal battle with Energy Transfer Partners regarding the construction of the Dakota Access Pipeline (“DAPL”). The Tribe initially argued that the DAPL’s construction would destroy ancient burial sites and potentially poison their only source of drinking water, the Missouri River. The Tribe also argued that the agency involved in the project, the Army Corps of Engineers, did not fulfill the obligations required by the NHPA. For a while, the fate of the DAPL was uncertain, with permits for construction being denied and then granted. After the Army Corps of Engineers granted the permit pursuant to President Trump’s memorandum, construction on the DAPL was completed. After several failed attempts by the Standing Rock Sioux to halt operation of the DAPL, a federal district judge ruled in June 2017 that the environmental impact studies done on the DAPL were inadequate. While this ruling is a small victory for the Standing Rock Sioux Tribe, the NHPA was useless in protecting its cultural sites from significant damage.

Julia Stinson on Disenrollment as Cruel and Unusual Punishment

Matthew L.M. Fletcher

Julia M. Stinson has posted “When Tribal Disenrollment Becomes Cruel and Unusual” on SSRN. The article is forthcoming in the Nebraska Law Review. Here is the abstract:

In the past two decades, Native American tribes have disenrolled—permanently removed from tribal citizenship—thousands of tribal members, mainly because of lineage concerns or for political reasons. In these instances, scholars generally decry disenrollment. But there is a growing trend to disenroll tribal citizens for criminal conduct, and scholars (and even tribal members themselves) assume this is proper. This paper argues that tribal disenrollment for criminal conduct violates the Indian Civil Rights Act’s prohibition on cruel and unusual punishment.

The Supreme Court held that denationalization as a result of criminal conduct is cruel and unusual punishment in violation of the Eighth Amendment. Congress applied that same prohibition to Native American tribes in the Indian Civil Rights Act. And traditionally, tribes, who had the inherent power to impose any sanction necessary, focused on restoring harmony rather than punishing offenders; permanent expulsion was almost never imposed. Tribes are nations, and tribal membership is a voluntary compact equivalent in all meaningful respects to United States citizenship—hence, tribes cannot disenroll members for criminal behavior. Yet Congress also severely limited tribes’ ability to punish criminal defendants by capping incarceration at one year, and crime in Indian country is a significant problem. To allow tribes to battle crime and yet protect against cruel and unusual punishment, Congress should remove the limit on incarceration and individual tribal members can decide whether they are willing to submit to their tribe’s inherent power—and greater sentences—or voluntarily renounce their tribal citizenship.

Alex Skibine on the Last 30 Years of Indian Law

Matthew L.M. Fletcher

Alexander Tallchief Skibine has published “The Supreme Court’s Last 30 Years of Federal Indian Law: Looking or Equilibrium or Supremacy?” In the Columbia Journal of Race and the Law.

Here is the abstract:

For 187 years, Indian nations status in the United States has not been fully developed or consistently approached within the law. They are viewed as Domestic Dependent Nations located within the geographical boundaries of the United States. Although Chief Justice John Marshall acknowledged that Indian nations had a certain amount of sovereignty, the exact extent of such sovereignty as well as the place of tribes within the federal system has remained ill- defined. This Article examines what has been the role of the Supreme Court in integrating Indian nations as the third Sovereign within our federalist system. The Article accomplishes this task by examining the Court’s Indian law record in the last 30 years. The comprehensive survey of Indian law decisions indicates that while the tribal win-loss record at the Supreme Court is improving, the Court has had difficulties upholding the federal policy of respecting tribal sovereignty and encouraging tribal self-government.

After categorizing the cases between victories and losses, the Article divides the cases into categories for analytical purposes. The Second half of the Article focuses on the interaction between the Court and Congress concerning the incorporation of tribes as the third sovereign within the federalist system, and ends by arguing that through its disproportionate use of federal common law in its Indian law decisions, the Court has not attempted to reach a consensus with Congress about the place of Indian nations within our federalism.

New Scholarship on Voting Rights Act Litigation in Indian Country

Matthew L.M. Fletcher

Here is Jennifer L. Robinson and Stephen L. Nelson, The Small but Powerful Voice in American Elections: A Discussion of Voting Rights Litigation on Behalf of American Indians , 70 Baylor L. Rev. 91.

Greg Ablavsky Commentary on Upper Skagit Decision

Matthew L.M. Fletcher

Gregory Ablavsky has posted “Upper Skagit v. Lundgren: Deceptively Straightforward Case Raises Fundamental Questions about Native Nations, History, and Sovereignty” on Stanford Law School’s blog.

Here are excerpts:

This decision provoked the ire of Justice Thomas, who, in a lengthy dissent, insisted that the immovable property exception did apply to tribes.  Thomas’s rationale involved a deep dive into the history of international law, citing the principle’s enunciation not just in such well-known staples as Vattel’s 1758 Law of Nations but also in deep cuts like the works of Cornelius van Bynkershoek and Bartolus of Sassaferatto. (Sadly for connoisseurs of elaborately named international-law treatise writers, Samuel von Pufendorf failed to make the cut). Columbia’s Ronald Mann, writing in ScotusBlog, called this dissent a “tour de force of historical arguments.”

I’m not so convinced.  Although I’m on record sharply questioning Justice Thomas’s constitutional history in Indian law more generally, I agree with Thomas that the immovable property exception has deep roots in international law.  But I question his blithe assumption that the same principle did, or should, apply to tribes.

***

One consequence of Marshall’s ruling that tribes were “domestic dependent nations” was that Native nations were deprived the benefits of international law—including the immovable property exception.  The history of U.S. westward expansion is largely the history of one sovereign—the United States—purchasing land within the territory of other sovereigns—Native nations.  Yet, notwithstanding Thomas’s “six centuries of consensus” on the issue, the United States did not believe these purchases subjected these lands to tribal courts and law; it assumed that it now had jurisdiction as well as ownership over the land.  And this was an assumption: unlike the transfers from France in the Louisiana Purchase or Mexico in the Treaty of Guadalupe Hidalgo, for instance, which explicitly stated that they conveyed sovereignty as well as title, most Indian treaties spoke only of the boundaries of the land sold.  There is, then, a bitter irony in Thomas’s invocation of Bushrod Washington’s 1824 statement that “the title to, and the disposition of real property, must be exclusively subject to the laws of the country where it is situated”—an irony only heightened when we recall that Marshall had decided Johnson v. M’Intosh, which unambiguously rejected that principle with respect to Native peoples, a year before.

Gregory Ablavsky on the Original Meaning of “With the Indian Tribes”, Race, and Citizenship

Matthew L.M. Fletcher

Gregory Ablavsky has published “With the Indian Tribes”: Race, Citizenship, and Original Constitutional Meanings in the Stanford Law Review.

Here is the abstract:

Under black-letter law declared in the U.S. Supreme Court’s decision in Morton v. Mancari, federal classifications of individuals as “Indian” based on membership in a federally recognized tribe rely on a political, not a racial, distinction, and so are generally subject only to rational basis review. But the Court recently questioned this longstanding dichotomy, resulting in renewed challenges arguing that because tribal membership usually requires Native ancestry, such classifications are race based.

The term “Indian” appears twice in the original U.S. Constitution. A large and important scholarly literature has developed arguing that this specific constitutional inclusion of “Indian Tribes” mitigates equal protection concerns. Missing from these discussions, however, is much consideration of these terms’ meaning at the time of the Constitution’s adoption. Most scholars have concluded that there is a lack of evidence on this point—a gap in the historical record.

This Article uses legal, intellectual, and cultural history to close that perceived gap and reconstruct the historical meanings of “tribe” and “Indian” in the late eighteenth century. This Article finds not a single original meaning but duality: Anglo-Americans of the time also alternated between referring to Native communities as “nations,” which connoted equality, and “tribes,” which conveyed Natives’ purported uncivilized status. They also defined “Indians” both in racial terms, as nonwhite, and in jurisdictional terms, as noncitizens.

These contrasting meanings, I argue, have potentially important doctrinal implications for current debates in Indian law, depending on the interpretive approach applied. Although the term “tribe” had at times derogatory connotations, its use in the Constitution bolsters arguments emphasizing the significance of Native descent and arguably weakens current attacks on Native sovereignty based on hierarchies of sovereignty among Native communities. Similarly, there is convincing evidence to read “Indian” in the Constitution in political terms, justifying Mancari’s dichotomy. But interpreting “Indian” as a “racial” category also provides little solace to Indian law’s critics because it fundamentally undermines their insistence on a colorblind Constitution.

Student Note on ICWA as a Political Classification Statute

Matthew L.M. Fletcher

Allison Krause Elder has published “Indian” as a Political Classification: Reading the Tribe Back into the Indian Child Welfare Act in the Northwestern Journal of Law & Social Policy. Here is the abstract:

In the summer of 2018, the Ninth Circuit will consider an appeal from the dismissal of a constitutional challenge to the Indian Child Welfare Act (ICWA). Brought by a conservative think-tank, this case frames the ICWA as race-based legislation, violating equal protection by depriving Indian children of the same procedures as non-Indian children in child custody cases. In reality, the ICWA seeks to protect the interests of tribes, Indian families, and Indian children by establishing special procedures and obligations in Indian child custody cases. On its face, the ICWA is concerned not with the race of children, but with the special status of tribes and their political membership. As discussed in this Paper, a racial understanding of the ICWA is inconsistent with both the statute itself and the historically mixed political-racial status of tribes in the United States. While the Supreme Court created an opening for a race-based view of the ICWA in Baby Veronica, prior precedents embraced a political understanding of “Indian” where Congress intended to support tribal sovereignty. This Paper argues that any fair reading of the ICWA must treat “Indian” as a political rather than racial classification, and that the ICWA cannot be subject to strict scrutiny under equal protection. To do otherwise is to read the tribe out of the Act, which is not just inconsistent with the statute, but dismissive of the unique history of tribes in our nation.

Ezra Rosser on Medicaid Waivers and Political Preferences for Indians

Matthew L.M. Fletcher

Ezra Rosser has published “Medicaid Waivers and Political Preferences for Indians” in the Harvard Law Review Blog.

Kirsten Carlson on the Rise of Lobbying by Tribal Interests from 1978 to 2012

Matthew L.M. Fletcher

Kirsten Matoy Carlson has posted “Lobbying Against the Odds,” forthcoming in the Harvard Journal on Legislation. Here is the abstract:

Conventional narratives maintain that groups that lack political power litigate because they cannot attain their goals politically. Yet lobbying by American Indians has increased over 600 percent since the late 1970s. And they are not alone. Other politically marginalized groups have also intensified their lobbying efforts over the past five decades. This raises an important question that scholars have yet to adequately answer: Why do some groups use legislative strategies to achieve their goals? This Article challenges the prevailing wisdom and demonstrates that groups sometimes lobby even when the odds are stacked against them. It considers the existing sociolegal framework for understanding why groups litigate, and suggests modifications based on insights from interest group studies, to provide a more complete explanation of when and why groups engage in various advocacy strategies. This modified sociolegal approach produces significant insights into how legal and political actors influence and are influenced by the institutions they turn to, but also enables us to see similar—and divergent—patterns across contexts. The Article presents original quantitative data to document the dramatic rise in American Indian lobbying from 1978 to 2012. Then it uses the modified sociolegal approach to explain how the relationships among courts, the political process, and groups facilitated American Indian legislative advocacy. It concludes by discussing the implications of the approach for studies of legal mobilization, interest groups, and federal Indian law.

Recommended!