Michael Doran on Tribal Sovereignty and Fundamental Rights

Michael Doran has posted “Redefining Tribal Sovereignty for the Era of Fundamental Rights” on SSRN. It is forthcoming in the Indiana Law Journal.

The abstract:

This article explains a longstanding problem in federal Indian law. For two centuries, the U.S. Supreme Court has repeatedly acknowledged the retained, inherent sovereignty of American Indian tribes. But more recently, the Court has developed the implicit-divestiture theory to deny tribal governments criminal and civil jurisdiction over non-members, even with respect to activities on tribal lands. Legal scholars have puzzled over this move from a territorial-based definition of tribal sovereignty to a membership-based definition; they have variously explained it as the Court’s abandonment of the foundational principles of Indian law, the product of the Court’s indifference or even racist hostility to Indians, or a simple lack of doctrinal coherence in the Court’s decisions. This article provides a different explanation. The implicit-divestiture cases represent the Court’s effort to address a trilemma among three incompatible objectives: preservation of the traditional territorial-based definition of tribal sovereignty; preservation of tribal governments’ placement outside the federalist structure of the constitutional order; and preservation of fundamental rights. The Court has chosen to resolve the trilemma by redefining tribal sovereignty to deny tribal jurisdiction over non-members. Whether right or wrong, the implicit-divestiture theory is the Court’s good-faith attempt to preserve as much tribal sovereignty as possible without infringing on fundamental rights or forcing tribal governments into the federalist structure.

Posted in Author: Matthew L.M. Fletcher, Scholarship | Tagged ,

Scholarship for NAICJA Judicial Skills Training

August 21-23, 2019 in Seattle, WA.

Apply for the scholarship and register for the event.

PDF here.


Posted in Research | Tagged , , ,

Indian Law Articles in This Month’s Judicial Notice (New York Court Publication)


4 New York’s Quest for Jurisdiction over Indian Lands by Hon. Carrie Garrow

20 New York State’s Recent Judicial Collaboration with Indigenous Partners: The Story of New York’s Federal-State-Tribal Courts and Indian Nations Justice Forum by Hon. Marcy L. Kahn

34 The Origins and Evolution of the Indian Child Welfare Act by Danielle J. Mayberry

48 Thomas Indian School: Social Experiment Resulting in Traumatic Effects by Lori V. Quigley, Ph.D.

Posted in Author: Kate E. Fort, bar journal, Research, Scholarship | Tagged , , , ,

BYU Law Review Indian Law Symposium




Posted in Author: Matthew L.M. Fletcher, Scholarship | Tagged

“This Land” Podcast by Rebecca Nagle

Definitely worth a listen. First two episodes are about Carpenter v. Murphy.


Posted in Author: Matthew L.M. Fletcher, legal history, Research, Supreme Court | Tagged , ,

AFCARS Comments Due June 18

Here are the previous posts on the Adoption and Foster Care Analysis and Reporting System.

These comments are to tell the federal government (AGAIN) to start collecting basic data on state ICWA cases. While we would like the original rule to stand (and say so in the model tribal comments), there is also an opportunity to request very specific data elements that are less complicated or confusing than the ones currently offered.

If you would like information on this issue or model tribal comments, please email Jack Trope (information handouts), Delia Sharpe (model comments), or me (both/either). If you are a law professor interested in signing on to excellent comments, email Seth Davis at Berkeley.






Posted in Author: Kate E. Fort, Child Welfare, ICWA | Tagged , , ,

SCOTUS Denies Cert in Mitchell v. Tulalip; Teck Metals v. Colville; and King Mountain Tobacco

Here is the order list.

Mitchell materials here.

Teck Metals materials here.

King Mountain materials here.

Posted in Author: Matthew L.M. Fletcher, Research, Supreme Court | Tagged , , , , , , , , , , , ,

Seneca Nation Petition to Vacate Arbitration Award Favoring State of New York on Revenue Sharing

Here are the materials in Seneca Nation of Indians v. State of New York (W.D. N.Y.):

1-1 Motion to Vacate

2-3 Final Award

2-4 Partial Final Award

2-5 Washburn Dissent

Posted in Author: Matthew L.M. Fletcher, IGRA, Indian gaming, Research | Tagged , , , ,

Frank Pommersheim’s Valedictory Notes and Collage

Frank Pommersheim has published “I Was So Much Older Then/I’m Younger Than That Now: Valedictory Notes and Collage” in the South Dakota Law Review (pdf).

Here is an excerpt:

Teacher, Scholar, Tribal Justice, Colleague. These are theseasons turning and braiding across my years and decades in thefield, the factory, and the monastery of my work and vocation.The toil of craft and building community. Yet there is alsosomething valedictory and elegiac that guides this pen and spillsthis ink in the desire to provide both a professional and personalsense of my thirty-five years of service at the University of SouthDakota School of Law (hereinafter USD).

Frank (far right) at the Montana Law Review symposium 2018

Posted in Author: Matthew L.M. Fletcher, Scholarship | Tagged ,

Friday Job Announcements

Any posts for an open Indian law or leadership job received prior to 12pm EST on Friday will appear in that week’s announcement, when the following information is sent to indigenous@law.msu.edu:

  1. In the email body, a typed brief description of the position which includes position title, location (city, state), main duties, and closing date;
  2. An attached PDF job announcement.

Please send all job announcements in this requested format.

Pueblo of Laguna

Court Prosecutor, Dept: Pueblo Courts / Prosecutor’s Office, Laguna, NM. Under administrative supervision of the Governor, presents/files criminal complaints and prosecutes individuals accused of violating ordinances of the Pueblo. This position is open until filled. For more information please see the job description.

Law Clerk, Dept: Government Affairs Office, Laguna, NM. Under direct supervision of the Government Affairs Director and/or In-House Attorney, the Law Clerk assists in all aspects of legal services including performing legal analysis, researching and preparing legal files and documents. Closing date for application is June 14, 2019. For more information please see the job description.

AmeriCorps VISTA

Strategic Planning VISTA VAD, Washington, DC. The goal of this project is to build capacity within NLADA to determine if there are effective national service interventions that would improve individual and community outcomes in the Civil and Criminal Justice Systems in the areas of Court Fines and Fees, the Opioid Epidemic, and Tribal Defense Structures. For more information please see the description.

Michigan Coalition to End Domestic and Sexual Violence (MCEDSV)

Staff Attorney(s), MI. Work with MCEDSV’s Survivor Law Project to provide victims with access to legal representation to assert and seek enforcement of their rights throughout criminal justice processes. For more information please see the job description.


Staff Attorneys, Clean Energy/Coal, Chicago, IL or Philadelphia, PA or Washington, DC. Track tariff, rate, resource planning and/or rule proposals in either utility commissions or regional energy markets and at FERC; Conduct legal advocacy before utility commissions and/or wholesale electricity market operators and FERC; and more.  Application is a rolling deadline. To apply click here and visit the job announcement for more information.

Association on American Indian Affairs

Office/Operations Manager, Rockville, MD. Oversee daily operations of the organization; Design and implement office system strategies, plans and procedures that promote the organization’s culture and vision; and more. Application due by June 21, 2019, 5:00 pm EST. Application includes a cover letter that explains your fit with the organization, your resume and a writing sample to shannon.aaia@indian-affairs.org.

Hopland Band of Pomo Indians

NCICS Court Operations Manager, Hopland, CA. The Northern California Intertribal Court System (NCICS) Tribal Court Operations Manager is responsible for the administration of tribal court operations, programs, and services.  They also work closely with tribal leaders of the NCICS Judicial Council, Judges, tribal attorneys, court clerks, probation officers, tribal advocates, and county Judges and court administrators.  For more information please see the job description.

Tribal Probation Specialist, Hopland, CA. Responsible for providing meaningful assistance to the Court in its deliberations and decisions concerning offenders and to ensure public safety through the monitoring and supervision of offenders placed under supervision by the Court.  For more information please see the job description.

Mille Lacs Band of Ojibwe

Law Clerk PT, Court of Central Jurisdiction, Onamia, MN.  The Law Clerk position is responsible for assisting the Mille Lacs Band Tribal Court judiciary with legal research, drafting of court decisions and special court development projects.  The closing date for the position is June 18, 2019.  For more information, please see the job posting.

Hoopa Valley Tribe

Hoopa Tribal Court Summer Internship, Northern California, 95546. Assist the Court in the victims advocates program, the comprehensive opioids abuse prevention program, family wellness court, general court operations, research, writing, and other duties as assigned. Please see the position description for more information.

Native American Agriculture Law Center


Staff Attorney, St. Paul, MN. The Staff Attorney will handle legal issues relating to Native American agriculture by assisting partner organizations in the analysis and development of effective public policy; authoring relevant legal educational materials and publications; and more. The position is open until filled, and could be located in the FLAG’s office in St. Paul or worked remotely. For more information, please see the job description.


Deputy Director, Mission, SD. DPLS provides free legal services to low income and elderly clients located primarily in the western half of South Dakota and to Native American clients located throughout South Dakota and on the Standing Rock Indian Reservation, which extends into North Dakota. Deputy Director will have primary responsibility for fundraising, overseeing the Human Relations functions of DPLS, staff development and training. Closing date is July 12, 2019. Please see the description for more information.


See posts from May 31, 2019.

If you have submitted a job posting that was not included in this announcement, please send the posting to indigenous@law.msu.edu in the format requested above. We ask this in response to the dozens of job announcements that are sent to Turtle Talk each week. Thanks!

Posted in jobs, Research | Tagged , ,