Alexander Tallchief Skibine has posted a very interesting paper, “Incorporation Without Assimilation: Legislating Tribal Civil Jurisdiction Over Non-Members,” on SSRN. It is forthcoming in the UCLA Law Review Discourse.
For the last 40 years the Supreme Court has been engaged in a measured attack on the sovereignty of Indian tribes when it comes to tribal court jurisdiction over people who are not members of the tribe asserting that jurisdiction. The Congress has already enacted legislation partially restoring some tribal courts’ criminal jurisdiction over non-members. This Essay proposes to legislatively reconfirm the civil jurisdiction of tribal courts over such non-members. After examining the Supreme Court’s jurisprudence in this area and summarizing the Court’s main concerns with such tribal jurisdiction, this Essay explores various legislative options before settling on a preferred course of action. The proposal set forth in the last part of this Essay would reconfirm tribal court civil jurisdiction over non-members provided the tribal courts has established personal jurisdiction over the parties. However, tribal courts’ determinations on this subject would be appealable to federal courts. Furthermore, the Essay proposes to allow non-members being sued in tribal courts the option of removing their cases to federal courts under certain conditions.
Here are the materials in Tribal Council of the Cheyenne and Arapaho Tribes of Oklahoma v. Foster (W.D. Okla.):
Here, on SSRN.
The question whether Congress may create legal classifications based on Indian status under the Fifth Amendment’s Due Process Clause is now reaching a critical point. Critics claim the Constitution allows no room to create race or ancestry based legal classifications. The critics are wrong.
When it comes to Indian affairs, the Constitution is not colorblind. Textually, I argue, the Indian Commerce Clause and Indians Not Taxed Clause serve as express authorization for Congress to create legal classifications based on Indian race and ancestry, so long as those classifications are not arbitrary, as the Supreme Court stated a century ago in United States v. Sandoval and more recently in Morton v. Mancari.
Should the Supreme Court reconsider those holdings, I suggest there are significant structural reasons why the judiciary should refrain from applying strict scrutiny review of Congressional legal classifications. The reasons are rooted in the political question doctrine and the institutional incapacity of the judiciary. Who is an Indian is a deeply fraught question to which judges have no special institutional capacity to assess.
Dalindyebo Bafana Shabalala has posted “Intellectual Property, Traditional Knowledge, and Traditional Cultural Expressions in Native American Tribal Codes” on SSRN.
Here is the abstract:
Indigenous peoples and nations have been making demands for protection and promotion of their intellectual property, traditional knowledge, and traditional cultural expressions in domestic and international fora. The power of the basic demand is one that lies in claims of moral duty and human rights. This Article argues that in order for such claims to have power, one of the necessary elements for success is that the demandeurs themselves need to provide such protection within whatever scope of sovereignty that they exercise. In the context of Native American tribes seeking protection for Native American intellectual property under federal law in the broader territory of the United States, this Article argues that a necessary condition for success may be ensuring such protection on their own tribal territory. This Article serves as an early contribution to a broader research agenda aimed at providing more data as a basis for tribal claims for protection of their traditional knowledge and traditional cultural expressions. It presents a survey of the nature and scope of legal and formal protection that tribal legislation in the United States has provided for traditional knowledge and traditional cultural expressions. It further surveys and analyzes the nature and scope of protection provided under federal law and assesses the gap between what tribal codes provide and what federal law provides. It then proposes a series of next steps as a research agenda.
Kyle Fields has posted “Tohono O’odham Legal Systems” on SSRN.
Here is the abstract:
This short essay surveys the Tohono O’odham’s legal system through three periods. First, it discusses the traditional O’odham legal system, which relied on himdag (culture or way of life). Second, it reviews how the Spanish, using an inquisitorial system based on Christian religious law, altered the O’odham’s legal system. Third, it analyzes how the secular American adversarial system changed the O’odham’s legal system.
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.