Here is the opinion in Prairie Band Potawatomi Nation v. Yellen. Long story short, Shawnee settled (I think) so they’re out, Miccosukee is out because their challenge is moot, and Prairie Band gets a remand ‘cuz the gummint’s got some ‘splaining to do. No zhoonya for tribal interests here, though the billables keep coming.
In our circuit, both before and after Jemez I, the Jemez Pueblo could lose its established aboriginal title to Banco Bonito only if its title had been extinguished or abandoned. And the district court concluded that neither of those conditions had occurred. So in accordance with longstanding Supreme Court precedent, and by the district court’s findings, the Jemez Pueblo still has aboriginal title to Banco Bonito.
Join the University of Utah S.J. Quinney College of Law to celebrate the life of Alex Tallchief Skibine, who was S.J. Quinney Professor of Law at the college. Alex was a much loved member of our community and a renowned scholar in Indian Law.
Fellow Indian Law scholars from around the country will share their reflections on Alex and his impact in the field. There will also be space for attendees to share their memories of Alex.
The speakers will include: Matthew Fletcher, University of Michigan Law Carole Goldberg, University of California Los Angeles Law Robert Miller, Arizona State University Sandra Day O’Connor College of Law Nell Newton, Wake Forest University Law Elizabeth Kronk Warner, University of Utah S.J. Quinney College of Law
Sadly I could not attend and recorded a short statement. Alex will always be one of my favorites. This field will be less fun without him around.
Among the most basic principles of our federal courts is that they are courts of limited jurisdiction, exercising only those powers delegated to them in Article III. In 1985 the Supreme Court inexplicably created an exception to this constitutional tenant, and unilaterally declared a plenary judicial power to review the exercise of an Indian tribe’s inherent sovereign authority. This exception is unmoored from all other Supreme Court precedent outside Indian law, and unjustifiably assumes the judicial power in direct contrast to the Court’s ordinarily thoughtful jurisprudence on Article III and deference to the separation of powers.
This article concludes that the Supreme Court was wrong in 1985 when it assumed a plenary judicial power over Indian affairs. The consequences are profound, and suggest a reconceptualization of the entire field of Indian law. Canon creating cases like Oliphant, Montana, and Cabazon should never have been decided because the exercise of a tribe’s inherent authority does not create a federal question conferring subject matter jurisdiction on the federal courts. The inherent power of Indian tribes to criminally prosecute or civilly regulate non-Indians in Indian country should not subject them to the judicially imposed limits set by the Supreme Court, because the Court lacks subject matter jurisdiction to decide those cases. Until a treaty or statute creates an affirmative basis for federal court review, an Indian tribe’s inherent powers are subject to the checks and balances imposed by tribal government and no others.
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