Dylan Hedden-Nicely and Stacy Leeds have posted “A Familiar Crossroads: McGirt v. Oklahoma and the Future of the Federal Indian Law Canon” on SSRN. The paper is forthcoming in the New Mexico Law Review.
Federal Indian law forms part of the bedrock of American jurisprudence. Indeed, critical parts of the pre-civil war constitutional canon were defined in federal Indian law cases that simultaneously provided legal justification for American westward expansion onto unceded Indian lands. As a result, federal Indian law makes up an inextricable part of American rule of law. Despite its importance, federal Indian law follows a long and circuitous road that requires “wander[ing] the maze of Indian statutes and case law tracing back [over] 100 years.” That road has long oscillated between two poles, with the Supreme Court sometimes applying foundational principles that view tribes as sovereigns “retaining all their original natural rights,” and at other times treating tribes as mere “wards subject to a [self-imposed] guardian.”
Supreme Court respect for tribal sovereignty and self-determination reached its zenith in the so-called “modern era” of federal Indian law, spanning from 1959 through the late 1970s. During this era, the Court tended to adhere to federal Indian jurisprudence and solidified a relatively coherent doctrine based upon the foundational principles developed in the 1830s. The late Dean David Getches described the modern era as a time that “encouraged a reinvigoration of tribal governments throughout the country. During this period, tribes gained political influence and economic security as [the federal government] generally promoted a policy of tribal self-determination.”
The Court turned away from its foundational Indian law principles with the onset of the 1980s and the departure intensified as Chief Justice William Rehnquist was appointed chief justice in 1986. Since then, the touchstone of the Supreme Court’s federal Indian jurisprudence has been to employ a “subjectivist” approach whereby it “gauges tribal sovereignty as a function of changing conditions”—demographic, social, political, and economic—and the expectations of non-Indians that may be potentially by the exercise of tribal power. As a result, the Supreme Court became a strikingly hostile place for American Indian tribes as the Court became increasingly willing to divest tribes of governmental powers, not by upholding the enactments of Congress, but through its own interpretation of what tribal inherent governmental rights ought to be.
The appointment of Justice Sonia Sotomayor and, more recently, Justice Neil Gorsuch seems to have brought change to the Court’s direction in Indian law cases. Since then, cases have been consistently decided in favor of tribal litigants by reaffirming treaty rights through the application of foundational principles that focus on the plain language of treaties and the application of the Indian canons of construction. However, to be sure, even the Rehnquist Court did “recite and sometimes act upon foundation principles,” but those cases were limited to situations where “non-Indian interests [were] not seriously threatened.” All of Indian Country waited for, or perhaps dreaded, a true litmus test.
That test came to the Supreme Court in the form of two Indian law cases—Sharp v. Murphy and McGirt v. Oklahoma—both of which were framed by non-Indian parties to affect the interests of an estimated 1.8 million people in eastern half Oklahoma. Ready or not, Indian Country found its test case, which squarely placed the Court’s competing jurisprudential philosophies— its foundation principles versus its “subjectivist” approach—on a collision course.
In a powerful and uncharacteristically passionate decision, Justice Gorsuch wrote for a 5-4 majority, upholding treaty-based rights to re-recognize the historic reservation boundaries of the Muscogee (Creek) Nation, the fourth largest Indigenous nation in the United States. The decision was the fourth consecutive treaty-rights victory and seemed to solidify a shift toward a consistent approach rooted in foundational principles.
The victory was short-lived. Just weeks after the Court’s decision in McGirt, Justice Ruth Bader Ginsburg passed away, once again shifting the make-up of the United States Supreme Court. As a result, Federal Indian law once again finds itself at a crossroads. The Murphy and McGirt decisions are landmark decisions that bring change to the legal landscape of much of Oklahoma. It remains to be seen whether the perceived new Supreme Court era in Indian law is here to stay.
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Grand Traverse Band of Ottawa and Chippewa Indians
Associate Tribal Judge, Peshawbestwon, MI. Responsible for the operation and management of the Tribal Court and serve as the Conservation Associate Judge for the Conservation Court in the absence of the Chief Tribal Judge. Open Until Filled. Please see the position description for more information.
Ute Tribal Court
Prosecutor, Fort Duchesne, UT. The Prosecutor is responsible for independently prosecuting criminal, juvenile, civil, and other cases in the Ute Indian Tribal Court. The applicant must be a Utah State Licensed Attorney or eligible and have a Juris Doctorate from an ABA accredited law school. Applicants should complete a Tribal Application Form at www.utetribe.com and then mail the completed application material. Please see the position description for more information.
Lummi Indian Business Council
Staff Attorney II, Bellingham, WA. Works within the Office of the Reservation Attorney under the supervision of the Legal Director. Duties may include representing the Nation primarily in state court proceedings involving Lummi Children and youth and other staff attorney duties as assigned. Job performance of the Staff Attorney II is evaluated by the Legal Director. Click here to obtain a Lummi Indian Business Council (LIBC) application and see the job description for more information. Applications are open until filled.
Deuputy Managing Attorney, Rocky Mountain Regional Office, Denver, CO. Candidates should have at least ten years of litigation experience, as well as experience supporting the professional development of less senior attorneys through training and mentorship. The position will be located in Denver. Please see the position description for more information.
Tohono O’odham Nation
Attorney General, Tohono O’odham, AZ. provides legal advice and representation to all officials, agencies, departments, divisions and branches of the Tohono O’odham Nation, a federally recognized Indian tribe with 2.8 million acres of reservation land in Southern Arizona. The attorney general represents the Nation in all legal proceedings, and in other matters that affect the legal interests of the Nation; advises senior management and tribal officials; and supervises assistant attorneys general and contract attorneys. Please see the position description for more information.
Colville Confederated Tribes
Administrative Law Judge, Nespelem, WA. Responsible for conducting administrative hearings and writing decisions for cases involving personnel (discipline/terminations) appeals and child support enforcement cases. Child support enforcement cases require that the Administrative Law Judge coordinate program activity with county, state and federal agencies on obtaining and exchanging factual information for utilization in hearing, reviews, and as appropriate signs order for the Tribes child support program. Open Until Filled with Weekly Reviews.
Environmental Law Institute
Director, Environmental Justice Initiative, Washington, DC (but temporary telework due to Covid-19). The Environmental Law Institute (ELI) is looking for a seasoned legal professional to serve as Director of the Environmental Justice Initiative. We seek an experienced environmental justice (EJ) expert who can draw together ELI’s unique strengths and further our work devising legal, policy, and governance solutions to systemic racism in the United States. Applications close March 19, 2021. Please see the position description for more information.
See previous posts.
Here are materials in Shopbell v. Washington State Dept. of Fish and Wildlife (W.D. Wash.):
Prior post here.
The Superior Court dismissed criminal shellfish trafficking charges against him because a Washington State Department of Fish and Wildlife detective destroyed exculpatory evidence. Watch the hearing here: https://www.tvw.org/watch/?clientID=9375922947&eventID=2021011188. Here are the briefs in State of Washington v. Shopbell: