Here (the remainder of the briefs are on the Yellen v. Chehalis backgrounds materials page):
Brief of the Confederated Chehalis Tribes
Here (the remainder of the briefs are on the Yellen v. Chehalis backgrounds materials page):
Brief of the Confederated Chehalis Tribes
Alexander Tallchief Skibine has posted “Textualism and the Indian Canons of Statutory Construction,” forthcoming in the University of Michigan Journal of Law Reform, on SSRN.
Here is the abstract:
When interpreting statutes enacted for the benefit or regulation of Indians or construing treaties signed with Indian Nations, courts are supposed to apply any of five specific canons of construction relating to the field of Indian Affairs. Through an examination of the Supreme Court’s cases involving statutory or treaty interpretation relating to Indian nations since 1987, this Article demonstrates that the Court has generally been faithful in applying canons relating to treaty interpretation or abrogation. The Court has also respected the canon requiring unequivocal expression of congressional intent before finding an abrogation of tribal sovereign immunity. However, there are two other canons that the Court almost never applies. One requires clear intent to interfere with tribal sovereign rights, the other requires statutes to be construed liberally with ambiguities resolved to the benefit of Indians. After reviewing the possible reasons why textualist jurists might be opposed to the use of substantive canons, this Article makes two arguments to remedy any reluctance to use these two canons: First, these canons have constitutional roots and as such even textualists on the Court should not be reluctant to use them. Secondly, the canon applicable to abrogation of tribal sovereign immunity should also be applied to statutes interfering with tribal sovereign rights. There are no normative reasons to treat abrogation of sovereign immunity differently than other statutory interference with tribal sovereignty.
Highly recommended!
Here.
Here.
Background materials here.
Elizabeth Reese’s preview of the case “Tribal police drag messy Indian sovereignty cases back to the court.”
Update: Transcript.
Here:
2021-02-17 Seneca County Petition Final
Lower court materials here.
Question presented:
This Court has twice granted certiorari to decide whether tribal sovereign immunity bars lawsuits concerning rights to property that a tribe acquires on the open market. See Upper Skagit Indian Tribe v. Lundgren, 138 S.Ct. 1649 (2018); Madison Cty. v. Oneida Indian Nation of N.Y., 562 U.S. 960 (2010) (mem.). Both times, however, subsequent developments prevented the Court from definitively answering the question. This case presents an opportunity to definitively answer that important and recurring question. In the decision below, the Second Circuit doubled down on the holding that this Court granted certiorari to review in Madison County, and again robbed this Court’s decision in City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005), of practical effect by holding that if an Indian tribe purchases land on the open market and refuses to pay property taxes, there is nothing a local jurisdiction can do about it. That decision cannot be reconciled with Sherrill, and it effectively grants tribes a super immunity by rejecting the “uniform authority in support of the view that” the “immovable property” exception would preclude any sovereign’s efforts to invoke sovereign immunity in these circumstances. Upper Skagit, 138 S.Ct. at 1657 (Thomas, J., dissenting).
The question presented is:
Whether tribal sovereign immunity bars local tax authorities from collecting lawfully imposed property taxes by foreclosing on real property that a tribe has acquired on the open market.
Stacy Leeds and Lonnie Beard have posted “A Wealth of Sovereign Choices: Tax Implications of McGirt v. Oklahoma and the Promise of Tribal Economic Development,” forthcoming in the Tulsa Law Review, on SSRN. Here is the abstract:
Justice Neil Gorsuch’s now famous opening line in McGirt v. Oklahoma will long be remembered by Indigenous nations as one of the most powerful judicial statements in the history of federal Indian law. “On the far end of the Trail of Tears was a promise.”
For that promise to be fully realized, the McGirt decision must lead to more than just increased criminal justice system responsibilities for the federal government and the impacted Indigenous nations, collectively known as the “Five Tribes.” The promise at the end of the wholesale removal and relocation of Five Tribes was not simply an empty promise of geographic boundaries, it also included a permanent homeland with fully functioning tribal governments, including powers of taxation. With the re-affirmation of reservation boundaries and the re-assumption of many governmental responsibilities, the Five Tribes necessarily have the power to raise meaningful revenue to govern.
The promise must also include diverse economic development strategies conceived of and implemented by the Five Tribes in order to take advantage of and fully realize McGirt’s newly reaffirmed reservation status. If this challenge is accepted, the Five Tribes have an opportunity to reconfirm and expand government powers that have been denied them for over a century, including the power to make the same sovereign tax choices afforded other sovereigns worldwide.
This article explores the tax implications of the McGirt decision with detailed analysis of what has changed, and what remains the same, for purposes of federal, tribal and state taxing authority. The article suggests several law and policy choices available to the Five Tribes, including how to maximize tax incentives to grow the reservation population base and support a diverse economy through small business and enterprise scale development. The article includes a call to action for tribal governments to formulate a long-term economic strategy that will take advantage of tax attributes that attach to the various reservations. In conclusion, the article suggests possible compact arrangements with other Indigenous nations and with Oklahoma’s state and local governments.
McGirt has been heralded as ushering in substantial changes for the eastern half of Oklahoma. If tribes and Oklahoma play their collective economic cards right, big change could come in the form of positive economic outcomes. Economists predict, or at least hope for, a post-COVID economic revival for rural communities in America’s heartland. To assist in this economic revival, the Five Tribes’ reservations could serve as laboratories for the formulation of economic development strategies that could serve as blueprints for other parts of rural America. For that to happen in eastern Oklahoma, McGirt will need to live up to its full potential, becoming much more than an overturned criminal conviction from inside Indian country.
Here:
19-1414 Amicus Brief of NationalIndigenousWomensResourceCenter
19-1414 Indian Law Scholars Cooley Brief
19-1414 tsac Former U.S. Attorneys
19-1414 tsac Members of Congress
19-1414 tsac The Cayuga Nation
Final NCAI-Tribal Governments Amici Brief-US v Cooley 1-15-21
Other Cooley materials are here.
Here is today’s order list. The Court granted the consolidated cases of Mnuchin v. Confederated Tribes of the Chehalis Reservation and Alaska Native Village Corporation Assn. v. Confederated Tribes of the Chehalis Reservation.
Here are the cert stage briefs.
Here are the lower court materials.
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