Scholarship

Michalyn Steele on Plenary Power, Political Questions, and Sovereignty in Indian Affairs

Matthew L.M. Fletcher

Michaelyn Steele has published “Plenary Power, Political Questions, and Sovereignty in Indian Affairs” in the UCLA Law Review.

Here is the abstract:

A generation of Indian law scholars has roundly, and rightly, criticized the Supreme Court’s invocation of the political question and plenary power doctrines to deprive tribes of meaningful judicial review when Congress has acted to the tribes’ detriment. Courts have applied these doctrines in tandem so as to frequently leave tribes without meaningful judicial recourse against breaches of the federal trust responsibility or intrusions upon tribal interests and sovereignty. For example, courts consider congressional abrogation of a treaty a political question beyond the reach of the judiciary. At the same time, challenges to the inherent, or aboriginal, authority of tribes are deemed justiciable. The Court’s inconsistent approach represents a kind of “heads I win; tails you lose” application of the political question and plenary power doctrines in Indian affairs.

This Article proposes that, rather than facing a rigged coin toss in the courts, tribes should be able to avail themselves of the political question and plenary power doctrines to have Congress, rather than the courts, decide questions of inherent tribal authority. Under current precedent, the Court has aggrandized its own power in Indian affairs through the theory of implicit divestiture, which holds that the judiciary may find tribes divested of inherent powers even without congressional action. This Article argues that the questions of whether inherent tribal authority endures, and which sovereign powers tribes can exercise, should be political rather than judicial. This Article challenges long-held assumptions about these fundamental doctrines of federal Indian law and poses important questions about the role of the courts and Congress and about the future of inherent tribal sovereignty.

HIGHLY RECOMMENDED.

Matthew Fletcher is First Native Plenary Speaker at National Conference

Sarah M Donnelly2 Comments
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Here is Matthew with Robert Listenbee, Jr., at the National Council of Juvenile and Family Court Judges’ National Conference on Juvenile Justice in Las Vegas.  Listenbee, Administrator of the DOJ’s Office of Juvenile Justice and Delinquency Prevention, introduced Matthew and encouraged the group to work harder to bring justice for Native children and youth.  Matthew is the first Native plenary speaker that NCJFCJ has had at one of its national conference!  His presentation was “The Crisis in American Indian Juvenile Justice.”

Kevin Washburn on Recurring Issues in Indian Gaming Compact Approval

Matthew L.M. Fletcher

Kevin Washburn has posted “Recurring Issues in Indian Gaming Compact Approval” on SSRN. The paper is forthcoming in Gaming Law and Economics.

The abstract:

As tribal-state gaming compact negotiations under IGRA have become more complex and ratification in state and tribal legislative bodies has become more political, state and tribal negotiators sometimes lose sight of important interests protected by IGRA through the Secretary of the Interior’s review authority. IGRA is fairly clear about the terms parties may and may not negotiate in compacts and Interior has begun to enforce IGRA more and more rigorously in the review process. To minimize the risk of disapproval, state and tribal negotiators are wise to consider several issues that are likely to raise concerns among federal reviewers. This essay surveys some of the more common issues that continue to arise in compact negotiations.

On another, unrelated note, Professor Washburn’s photography skills were in fine form this last weekend.

American Indian Law Review, Vol. 39, No. 2

Matthew L.M. Fletcher

Here:

Vol. 39, No. 2 (2014-2015)

Articles

Tribal Criminal Jurisdiction Beyond Citizenship and Blood – Addie C. Rolnick

When a Tribal Entity Becomes a Nation: The Role of Politics in the Shifting Federal Recognition Regulations – Lorinda Riley

Comments

Native Americans and the Legalization of Marijuana: Can the Tribes Turn Another Addiction into Affluence? – Melinda Smith

Coalbed Methane Development in Wyoming and Montana: The Potential Impacts of Montana v. Wyoming, Coalbed Methane Development, and Water Quality on the Tribes of the Powder River and Wind River Basins – Mallory Irwinsky

The Bureau of Land Management’s Finalized Hydraulic Fracturing Rule on Tribal Lands: A Responsibility or Intrusion? – Kerstie Moran

Note

Analysis of a Bias-Based Exception to the Doctrine of Exhaustion in Wilson v. Bull – Mitch McGrew

Sarah Krakoff on American Indian Tribes, Race, and the Constitutional Minimum

Matthew L.M. Fletcher

Sarah Krakoff has posted “They Were Here First: American Indian Tribes, Race, and the Constitutional Minimum” on SSRN.

Here is the abstract:

In American law, Native nations (denominated in the Constitution and elsewhere as “tribes”) are sovereigns with a direct relationship with the federal government. Tribes’ governmental status situates them differently from other minority groups for many legal purposes, including equal protection analysis. Under current equal protection doctrine, classifications that further the federal government’s unique relationship with tribes and their members are not subject to heightened scrutiny. Yet this deferential approach has been subject to recent criticism and is currently being challenged in pending cases. Swept up in the larger drift toward colorblind or race-neutral understandings of the Constitution, courts and commentators question the distinction between tribes’ political and racial status, and urge courts to strike down child welfare and gaming laws that benefit tribes. Yet tribes (as collectives) must trace their heritage to peoples who preceded European/American settlement in order to establish the political relationship with the federal government. Tribes, in order to be recognized as such under the Constitution, therefore must, as an initial definitional matter, consist of people tied together by something akin to lineage. Descent and ancestry (often conflated with the socio-legal category of “race,”) are the difference between legitimate federal recognition of tribal status and unauthorized and unconstitutional acts by Congress. Congress, in other words, cannot establish a government-to-government relationship with just any group of people. Tribes are treated differently from other groups due to their ties to the indigenous peoples of North America, and federal courts should not use that constitutional distinction against tribes in a misguided effort to eradicate all traces of things currently sounding in “race.”

The argument advanced here might be seen as a form of American Indian law exceptionalism. Yet it is consistent with racial formation theory’s project of understanding race as a construction that serves, creates, and perpetuates legalized subordination, and that also shapes daily social conceptions and interactions. Racial formation theory calls for multiple accounts of racialization depending on the social and economic purposes served by each groups’ subordination. On the remedial side, racial formation theory therefore necessarily anticipates what we might think of as multiple exceptionalisms. Reversing policies that aimed to eliminate Native people from the continent, and the racialized understanding of Indians that drove them, requires maintaining the political status of tribes as separate sovereigns, not destroying it in the name of an ahistorical conception of “race” neutrality.

Robert Miller on Tribal Constitutions and Their Influence on the American Constitution

Matthew L.M. Fletcher

Robert Miller has posted “American Indian Constitutions and Their Influence on the United States Constitution” on SSRN. 

Here is the abstract:

This paper analyzes modern-day American Indian constitutionalism. It describes the development of written constitutions by Indian nations and primarily focuses on constitutions developed since 1934 under the auspices of the federal Indian Reorganization Act. This paper also briefly examines the evidence that American Indian political philosophies, and traditional tribal governmental structures and ideas, influenced many of the Founding Fathers and the drafting of the United States Constitution.

Native American Scholarship Available for Elk River Writers Workshop

Ann Tweedy1 Comment

Chickasaw poet Linda Hogan is among the faculty.  Deadline is May 1.  More information is available here.

Minn. American Indian Bar Assoc.’s 2016 Indian Law Conference

Sarah M Donnelly1 Comment

Download the agenda and registration form here.

The MAIBA CLE Committee announces the 2016 Indian Law Conference will be held on Friday May 6th at the Mystic Lake Casino Hotel.  An excellent program has been scheduled with several national speakers and cutting edge topics.  Please note that Professor Sarah Deer will be honored at the reception Friday afternoon.

Their co-sponsor, Minnesota CLE, is again handling registration.  Please find the attached brochure, which includes the agenda.  You can view the same material and register by using the following link:

http://www.minncle.org/E-PromosHTML/indian2016.htm

Johnsen on the Economics of the Potlatch

Matthew L.M. Fletcher

Bruce Johnsen has posted “The Potlatch as Fractional Reserve Banking” on SSRN, forthcoming in Unlocking the Wealth of Indian Nations, edited by Terry L. Anderson. Here is the quick description:

This chapter focuses on the Northwest Coast Tribes’ early capital markets and specifically on how their potlatch system served as a system of fractional reserve banking to expand their money supply and finance wealth enhancing investments.

Clarkson, Spilde, and Claw Nez on Tribal Online Commerce

Matthew L.M. Fletcher

Gavin Clarkson, Kate Spilde, and Carma Claw Nez have posted “Online Sovereignty: The Law and Economics of Tribal Electronic Commerce” on SSRN.

Here is the abstract:

In 1886, the US Supreme Court wrote that, for Indian tribes, “the people of the states where they are found are often their deadliest enemies.” Recently, state agencies and regulators have continued that tradition of hostility by improperly attempting to regulate electronic commerce businesses operated by tribal governments that are more properly subject to regulations established by tribal law and subject to federal oversight. Despite the fact that these online businesses operate exclusively under tribal law and make their tribal affiliation clear to customers, certain state regulators have demanded absolute compliance with state law, even when such laws are from states thousands of miles away. Not only does this overreaching by uninformed state regulators limit the products available to consumers but it also severely undercuts on-reservation economic development, imperils tribal electronic commerce, and challenges basic notions of tribal sovereignty.

Businesses and consumers entering into commercial contracts rely heavily on consistency and predictability in contracting, including when the parties mutually agree to apply tribal law or utilize tribal courts to resolve disputes. Uniform interpretation and enforcement of such agreements are critical to ensuring continued investment in tribal businesses. With over one quarter of American Indians living in poverty, nearly twice the national average, it has never been more important to promote confidence in the Indian economy. When courts do not give full force and effect to contracting parties’ desire to resolve their private disputes using tribal courts and tribal law, this confidence is threatened. While it is unclear how this controversy will ultimately play out, one thing is certain: states are not only undermining tribal innovation and harming tribal economies but also attacking tribal sovereignty itself.

Perhaps lost in the legal rancor, however, are the very real human and economic consequences of the loss of tribal revenues from e-commerce business, as well as the potential damage to tribal e-commerce as a whole. In this article, we present results of our empirical research into the economic impact of tribal online lending in Indian Country. We first frame the issue with a brief summary of the legal foundations for tribal e-commerce and tribal lending in particular. We then present several case studies of tribes that have engaged in online lending, focusing on the direct economic impact to those tribal communities. We conclude the article with policy arguments as to why state and federal regulators should support rather than suppress tribal e-commerce, including tribal small-dollar online lending.