Ninth Circuit Briefs in Northwestern Band of Shoshone Indians v. State of Idaho

Topside briefs here:

Response briefs TK.

Lower court materials here.

Little Soldier

David Moore and Michalyn Steele on Revitalizing Indian Sovereignty in Treatymaking

David H. Moore and Michalyn Steele have published “Revitalizing Indian Sovereignty in Treatymaking” in the N.Y.U. Law Review.


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?

Kekek Stark on Anishinaabe Rights of Nature Cases

Kekek Jason Stark has published “Bezhigwan Ji-Izhi-Ganawaabandiyang: The Rights of Nature and its Jurisdictional Application for Anishinaabe Territories” in the Montana Law Review.

An excerpt:

This article examines the tribal law acknowledging the Rights of Na- ture as a deeply embedded traditional Anishinaabe law principle. This traditional law principle acknowledging the rights of nature is crucial for sustaining the Anishinaabe Nations’ relationship with their territorial lands and natural resources. What does it mean to recognize the rights of ma- noomin (wild rice) to “exist, flourish, regenerate, and evolve” or to be pro- tected in its traditional forms, natural diversity, and original integrity? This article then delineates the various ways that the White Earth Band of Ojibwe has codified their relationship with their territorial lands and natural resources into tribal law. While the rights of manoomin and similar laws have been widely touted in the press as important victories for tribal sover- eignty, this article more deeply evaluates the practical effects and applica- tions of this tribal law to determine whether this law can serve as a frame- work for other Tribal Nations or is merely a symbolic gesture. Moving beyond symbolic gestures is essential for tribes to implement legal regimes more protective than those provided by states that may otherwise permit development activities by non-Indian parties within treaty territories.

HIGHLY, HIGHLY recommended.

SCOTUS Denies Cert in Two Indian Fishing Cases

Here is today’s order list.

The court denied cert in Scudero v. Alaska (cert stage materials) and Snoqualmie v. Washington (cert stage materials).

Where cert petitions go to dieU.S. Supreme Court interiors. Corridor, U.S. Supreme Court

Snoqualmie v. Washington Cert Petition


Questions presented:

  1. Whether the federal courts have the constitutional authority to unilaterally abrogate all rights guaranteed to an Indian tribe under a treaty with the United States absent congressional action.
  2. Whether the Ninth Circuit erred by applying issue preclusion to hold that Snoqualmie was not a party to the Treaty even though the Executive Branch expressly recognizes Snoqualmie as a Treaty party.

Lower court materials here.

Amicus briefs in support of the petition:

Wisconsin Federal Court Rejects Enbridge Demand to Depose Bad River Council Members “Thought Processes”

Here are materials in Bad River Band of the Lake Superior Tribe of Chippewa Indians v. Enbridge Inc. (W.D. Wis.):

Prior post here.