Alex Tallchief Skibine has published “Incorporation Without Assimilation: Legislating Tribal Civil Jurisdiction over Nonmembers” in the UCLA Law Review Discourse.
For the last forty years the U.S. 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 U.S. Congress has already enacted legislation partially restoring some tribal courts’ criminal jurisdiction over nonmembers. This Article proposes to legislatively reconfirm the civil jurisdiction of tribal courts over such nonmembers. After examining the Supreme Court’s jurisprudence in this area and summarizing the Court’s main concerns with such tribal jurisdiction, this Article explores various legislative options before settling on a preferred course of action. The proposal set forth in the last part of this Article would reconfirm tribal court civil jurisdiction over nonmembers 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 Article proposes to allow nonmembers being sued in tribal courts the option of removing their cases to federal courts under certain conditions.
Alex Skibine has posted his paper “From Foundational Law to Limiting Principles in Federal Indian Law,” forthcoming in the Montana Law Review as part of the 2018 Browning. The abstract:
In this Article, I am arguing that one of the reasons animating the Court’s move away from Justice Marshall’s exceptionalism is its fear that under traditional foundational principles of federal Indian law, Indian tribes may gain what the court subjectively perceives to be “unfair” advantages over non-Indians. Therefore, the Court has been looking for limiting principles tending to achieve level playing fields between tribal and non-tribal actors. This Article also argues, however, that while looking for a level playing field may sound like a worthwhile goal, there are many pitfalls involved in this process that may end up hurting tribal sovereign interests.
Alexander Tallchief Skibine has published “The Supreme Court’s Last 30 Years of Federal Indian Law: Looking or Equilibrium or Supremacy?” In the Columbia Journal of Race and the Law.
Here is the abstract:
For 187 years, Indian nations status in the United States has not been fully developed or consistently approached within the law. They are viewed as Domestic Dependent Nations located within the geographical boundaries of the United States. Although Chief Justice John Marshall acknowledged that Indian nations had a certain amount of sovereignty, the exact extent of such sovereignty as well as the place of tribes within the federal system has remained ill- defined. This Article examines what has been the role of the Supreme Court in integrating Indian nations as the third Sovereign within our federalist system. The Article accomplishes this task by examining the Court’s Indian law record in the last 30 years. The comprehensive survey of Indian law decisions indicates that while the tribal win-loss record at the Supreme Court is improving, the Court has had difficulties upholding the federal policy of respecting tribal sovereignty and encouraging tribal self-government.
After categorizing the cases between victories and losses, the Article divides the cases into categories for analytical purposes. The Second half of the Article focuses on the interaction between the Court and Congress concerning the incorporation of tribes as the third sovereign within the federalist system, and ends by arguing that through its disproportionate use of federal common law in its Indian law decisions, the Court has not attempted to reach a consensus with Congress about the place of Indian nations within our federalism.
Alexander Tallchief Skibine has posted “The Supreme Court’s Last 30 Years of Federal Indian Law: Looking for Equilibrium or Supremacy?” He presented this paper at the PLSI 50th Anniversary.
Here is the abstract:
Since 1831, Indian nations have been viewed as Domestic Dependent Nations located within the geographical boundaries of the United States. Although Chief Justice John Marshall acknowledged that Indian nations had a certain amount of sovereignty, the exact extent of such sovereignty as well as the place of tribes within the federal system has remained ill-defined. This Article examines what has been the role of the Supreme Court in integrating Indian nations as the third Sovereign within our federalist system. The Article accomplishes this task by examining the Court’s Indian law record in the last 30 years. The comprehensive survey of Indian law decisions indicates that the Court has had difficulties upholding the federal policy of respecting tribal sovereignty and encouraging tribal self-government. After categorizing the cases between victories and losses, the Article divides the cases into four categories: Federal common law, statutory interpretation, constitutional law, and procedural law. The cases are then further divided into four general areas: 1. Tribal Sovereign/Political rights, 2. Economic Rights (treaty/property rights), 3. Rights derived from the trust relationship, and 4. Cultural/Religious rights.
The Article next focuses on the interaction between the Court and Congress concerning the incorporation of tribes as the third sovereign within the federalist system. This Part first evaluates Congress’s response to Supreme Court cases and then looks at the Court’s response to congressional legislation. The Article ends by arguing that through its disproportionate use of federal common law in its Indian law decisions, the Court has not attempted to reach a consensus with Congress about the place of Indian nations within our federalism. Instead, it has aimed to establish what the Court perceives should be the proper equilibrium between tribal interests on one hand and the non-Indian/state interests on the other.
Alexander Skibine has posted “Indians, Race, and Criminal Jurisdiction in Indian Country,” forthcoming in the Albany Government Law Review, on SSRN.
Here is the abstract:
With the possible exception of the Indian Major Crimes Act, the classification of “Indian” for the purposes of the ICCA and the Duro Fix is not “racial” even if it includes non-enrolled people of Indian ancestry with significant connections to tribal communities. Furthermore, although the first prong of the Rogers test should be eliminated on policy grounds, the holding of the Zepeda court that the first prong could be satisfied by proof of blood quantum from any Indian tribe, recognized or not, is highly suspicious, seems to be arbitrary, and boosts the argument that the classification of “Indian” in such cases is a racial classification.
Acknowledging the problems plaguing current law enforcement on Indian reservations, this article has endorsed a position which would allow Indian tribes to determine the meaning of “Indian” for the purpose of the Duro fix. The Article also argued that the universe of “Indians” for the purpose of federal jurisdiction should be limited to enrolled tribal members and those eligible for such membership unless the relevant tribe has enacted precise standards delineating who is an Indian for the purpose of federal jurisdiction on its reservation.
Alexander Tallchief Skibine has posted “Practical Reasoning and the Application of General Federal Regulatory Laws to Indian Nations” on SSRN.
Here is the abstract:
There are many Federal regulatory laws of general applicability, such as the NLRA, FLSA, ADEA and ADA, that do not specify whether they are applicable to Indian Nations inside Indian reservations. Because the United States Supreme Court has never issued a final ruling on this issue, the federal circuit court of appeals have developed no less than four different approaches to determine whether such regulatory laws should apply to Indian nations. After describing and evaluating the four approaches, this Article recommends applying “Practical Reasoning” to interpret congressional silence concerning application of those laws to Indian nations. Practical Reasoning is a theory of statutory interpretation developed by Professor William Eskridge and the late Professor Philip Frickey. According to these two scholars, “Practical Reasoning” is an “approach that eschews objectivist theories in favor of a mixture of inductive and deductive reasoning seeking contextual justification for the best legal answers among the potential alternatives.” Applying this theory, the Article explains why the approaches developed by the Tenth Circuit as well as in a 1993 opinion authored by Judge Posner for the Seventh Circuit, are more consistent with Practical Reasoning.
Current Utah law prof Alex Skibine and Melanie Beth Olivero published a scathing critique of the Supreme Court’s decision in Oliphant v. Suquamish Indian Tribe in the American Indian Journal:
American Indian Journal article
Of particular note is the prediction that non-Indian crime would go unpunished.
Alexander Tallchief Skinine has posted “Using the New Equal Protection to Challenge Federal Control Over Tribal Lands” on SSRN.
Here is the abstract:
There are today over 55 million acres of land owned by Indian tribes or their members that the Federal government claims are held in trust by the United States for the benefit of these tribes or members. Throughout history, purporting to act as a trustee for the Indians, Congress has enacted laws severely restricting the ability of Indians to make management decisions with respect to these lands. Many of these laws, for instance impose federal approval requirements before these tribally-owned lands can be leased, sold, or otherwise encumbered. This Article calls into question the power of the federal government to impose such restrictions and argues that these laws constitute a denial of equal protection under the Due Process Clause Fifth Amendment. Since 1974, laws made specifically applicable to Indians because of their status as Indians have been held not to involve racial classifications but political ones because these laws do not affect all “Indians” but only those Indians that are also members of Indian tribes. While this holding has been welcomed by tribes when fighting to uphold laws benefitting Indians, it has also impaired their ability to make effective equal protection arguments against laws detrimental to them. The prevailing view is that in order to mount a successful equal protection challenge, Indians would have to show that such laws are not rationally tied to Congress’ unique trust obligations towards Indians. Others take the position that regular rational basis review would be applicable to such equal protection challenges. This Article disagrees with both positions and argues that the new Supreme Court Equal Protection jurisprudence as reflected in cases such as United States v. Windsor (2013) can be successfully used by Indian tribes to attack those laws imposing, only on them, federal approval requirements before such lands can be leased or otherwise encumbered. Under such new jurisprudence a law can be set aside under equal protection either if it was based on unconstitutional animus towards a vulnerable minority or if it did not pass a somewhat more intensive level of review than rational basis. What some scholars have called “rational basis with bite.”
Alexander Tallchief Skibine has posted his paper, “Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes,” forthcoming in the American Indian Law Review, on SSRN.
Here is the abstract:
In this Article, I argue that because Indian tribes have been incorporated into our constitutional system under a third sphere of sovereignty, the federal common law analysis under which the Court determines the extent of sovereign authority still possessed by Indian tribes is faulty. Instead of using federal common law, the Court should adopt a constitutional or at least quasi constitutional mode of analysis in determining such issues which in this case should be a dormant Indian Commerce Clause analysis. I also argue that the incorporation of tribes into our constitutional order not only has diminished the amount of power Congress has over such tribes but also may have limited the ability of tribes to escape limits the Constitution imposed on any exercise of sovereign authority within the geographical limits of the United States.
Oversight Hearing on:
- “Executive Branch standards for land-in-trust decisions for gaming purposes”
The Honorable Don Young
Witnesses and Testimony:
Assistant Secretary for Indian Affairs
U.S. Department of the Interior
The Honorable Todd Mielke
County of Spokane
Colusa Indian Community Council
University of Utah