National Intertribal Tax Alliance Conference

Monica Williamson

August 13-15, 2019

Pueblo of Pojoaque Buffalo Thunder

This one-day training, followed by a two-day conference, will explore how tribes can build a sustainable tribal economy and fiscal system with a focus on increasing tax revenues, improving tax administration efficiencies, negotiating compacts, financing infrastructure and other important topics. Participants will receive a certificate of completion.

See the draft agenda and the conference flyer for more information.

The Tulo Centre of Indigenous Economics is a Canadian charitable organization whose mission is to assist interested First Nations in building legal and administrative frameworks that support markets on their lands. The Tulo Centre offers university accredited tax administration programs and works in partnership with the First Nations Tax Commission, National Intertribal Tax Alliance, and other organizations.  More information on the Centre can be found at https://www.tulo.ca/

Notice Case out of Alabama [ICWA]

Kate Fort

Here.

Sometimes even I am struck dumb by the notice cases:

A second form, dated in 2017 and signed by C.L.B., was also introduced into evidence. C.L.B. testified that his mother had assisted him in completing the 2017 form. On the 2017 form, C.L.B. listed Cherokee and “Ojibwa-(Chippewa)” as the tribes in which he, B.E.B., or one of B.E.B.’s paternal grandparents might have membership.

Star Pope testified that, at the direction of C.L.B., she had inquired of the paternal grandmother of B.E.B. regarding with which tribes C.L.B.’s family might be affiliated. She testified that the paternal grandmother of B.E.B. had informed her that C.L.B. was not affiliated with the Cherokee or Sioux tribes but that she had identified the Chippewa or Ojibwe tribe as a possibility. Pope testified that she had contacted authorities in several different states and that she had eventually been directed to a central location to which, she said, she had mailed a letter requesting information concerning whether B.E.B. would be recognized as an Indian child or have benefits under the ICWA. DHR introduced into evidence a letter dated May 4, 2016, that had been mailed to the ICWA representative from the Chippewa Indians of Mackinac, Michigan . . .

DHR also introduced a letter from the Bay Mills Indian Community dated May 19, 2016, in response to an inquiry from DHR; that letter indicated that B.E.B. was not eligible for membership in the Bay Mills Indian Community.

 

Gregory Ablavsky on the Origins of Dual Federalism

Matthew L.M. Fletcher

Gregory Ablavsky has published “Empire States: The Coming of Dual Federalism” in the Yale Law Journal (PDF).

Here is the abstract:

This Article offers an alternate account of federalism’s late eighteenth-century origins. In place of scholarly and doctrinal accounts that portray federalism as a repudiation of models of unitary sovereignty, it emphasizes the federalist ideology of dual sovereignty as a form of centralization—a shift from a world of diffuse sovereignty to one where authority was increasingly imagined as concentrated in the hands of only two legitimate sovereigns.

In making this claim, the Article focuses on two sequential late eighteenth-century transformations. The first concerned sovereignty. Pre-Revolutionary ideas about sovereignty reflected early modern corporatist understandings of authority as well as imperial realities of uneven jurisdiction. But the Revolution elevated a new understanding of sovereignty in which power derived from the consent of a uniform people. This conception empowered state legislatures, which, throughout the 1780s, sought to use their status under new state constitutions as the sole repositories of popular authority to subordinate competing claims to authority made by corporations, local institutions, Native nations, and separatist movements.

The second shift came with the drafting and ratification of the U.S. Constitution, which bolstered federal authority partly in order to protect state authority against internal competitors—an aim reflected in the Guarantee and New State Clauses. Ultimately, the Constitution both limited and enhanced state authority; it entrenched a framework of dual sovereignty. After ratification, competitors to state sovereignty were increasingly constrained to appeal to some federal right or power. What had previously been contests among supposedly coequal sovereigns—what modern scholars would call horizontal federalism—became questions of vertical federalism, issues of whether federal authority would vindicate states or their opponents.

Although the Article concludes with some implications of this history for present-day federalism doctrine and theory, its primary contribution is descriptive. Judges and lawyers routinely and almost unthinkingly invoke localism and power diffusion as the historical values of federalism. Yet the history explored here challenges whether these near-universal assumptions about federalism’s aims actually reflect what federalism was designed to accomplish.

Minnesota COA Confirms Tribal Police Have Power to Detain and Deliver Non-Indians

Matthew L.M. Fletcher

Here is the opinion in State v. Thompson.

The court’s syllabus:

If a tribal police officer suspects a person who is not an Indian of violating a Minnesota criminal statute on an Indian reservation, and if the victim is not an Indian or there is no victim, the tribal police officer lawfully may detain the person and deliver him or her to state law-enforcement authorities for further investigation and prosecution.

AFCARS ICWA Data Elements Tribal Consultation

Kate Fort

Here is the information on the June 3 tribal consultation on the Adoption and Foster Care Analysis and Reporting System. Comments are due June 18.

Washington AG Announces Tribal Consultation Policy

Matthew L.M. Fletcher

Here.

Here is the press release.

Maggie Blackhawk on Indian Law as a Paradigm

Matthew L.M. Fletcher

Maggie Blackhawk has published “Federal Indian Law as Paradigm Within Public Law” in the Harvard Law Review (PDF).

Here is an excerpt from the abstract:

U.S. public law has long taken slavery and Jim Crow segregation as a paradigm case through which to understand our constitutional law: cases adjudicating issues of slavery and segregation form the keystones of our constitutional canon. Reconstruction, or the so-called “Second Founding,” and the Civil Rights Era periodize our constitutional histories. Slavery and Jim Crow segregation supply normative lessons about the strengths and failings of our constitutional framework. This paradigm teaches that if there is too much power in the states and not enough limitation on state power in the form of national power or rights, America might again reenact similar atrocities. Although there is much to learn from the United States’ tragic history with slavery and Jim Crow segregation, resting our public law on this binary paradigm has led to incomplete models and theories. This Nation’s tragic history of colonialism and violent dispossession of Native lands, resources, culture, and even children offers different, yet equally important, lessons about our constitutional framework.

In this Article, I argue for a more inclusive paradigm that reaches beyond the black/white binary, and I highlight the centrality of federal Indian law and this Nation’s tragic history with colonialism to public law. Currently, to the extent that federal Indian law is discussed at all within public law, it is generally considered sui generis and consigned to a “tiny backwater.” While I concede that the colonial status of Native peoples and the recognition of inherent tribal sovereignty do render aspects of federal Indian law exceptional, federal Indian law and Native history have much to teach about reimagining the constitutional history of the United States. Interactions between the national government and Native Nations have shaped the warp and woof of our constitutional law from the Founding across a range of substantive areas, including vertical and horizontal separation of powers, the Treaty Clause, war powers, executive powers in times of exigency, and many others. I aim to open a conversation as to whether these doctrines ought to take their rightful place in the canon or, perhaps, the anticanon.

2019 ICWA Agents for Notice

Kate Fort

Here

This year’s version appears to correct the mistakes in the 2018 list. That means it is even more important to share this year’s list of agents for notice.

2018 ICWA Case Update PowerPoint

Kate Fort

I get this request a lot, so here is a pdf of a PowerPoint with detailed citations and information for 2018/annual TICA update. If you need a PPT copy, let me know.