Alex Skibine

New Paper by Alex Skibine: “Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes”

Matthew L.M. Fletcher

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.

Highly recommended.

House Resources Subcommittee Hearing on Federal Trust Acquisitions for Gaming Purposes

Matthew L.M. Fletcher

Here:

Oversight Hearing on:

  • “Executive Branch standards for land-in-trust decisions for gaming purposes”

Member Statements:

The Honorable Don Young
Subcommittee Chairman

Witnesses and Testimony:

PANEL I

Kevin Washburn
Assistant Secretary for Indian Affairs
U.S. Department of the Interior

PANEL II

The Honorable Todd Mielke
County Commissioner
County of Spokane

Hazel Longmire
Vice-Chairperson
Colusa Indian Community Council

Alexander Skibine
Professor
University of Utah

Prof. Alex Skibine’s New Article in the Michigan Journal of Race and Law

Kate Fort

Towards a Balanced Approach for the Protection of Native American Sacred Sites

Here. (pdf)

From the abstract:

Protection of “sacred sites” is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and there fore to their survival as distinct peoples. The Supreme Court in Oregon v. Smith held that rational basis review, and not strict scrutiny, was the appropriate level of judicial review when evaluating the constitutionality of neutral laws of general applicability even when these laws impacted one’s ability to practice a religion. Reacting to the decision, Congress enacted the Religious Freedom Restoration Act (RFRA) which reinstated the strict scrutiny test for challenges to neutral laws of general applicability alleged to have substantially burdened free exercise rights. In a controversial 2008 decision, the Ninth Circuit held that a “substantial burden” under RFRA is only imposed when individuals are either coerced to act contrary to their religious beliefs or forced to choose between following the tenets of their religion and receiving a governmental benefit. In all likelihood, such a narrow definition of substantial burden will prevent Native American practitioners from successfully invoking RFRA to protect their sacred sites.

 

In this article, I first explore whether the Ninth Circuit’s definition of “substantial burden” is mandated under RFRA. To a large degree this question comes down to whether a pre-RFRA Supreme Court decision, Lyng v. Northwest Indian Cemetery, precludes courts from adopting a broader definition of what is a substantial burden under RFRA. Although this Article contends that neither Lyng nor RFRA precludes the adoption of a broader definition of “substantial burden,” the Article nevertheless acknowledges that many judges may disagree. The Article therefore recommends enactment of a legislative solution.

Supreme Court Outcomes: Federal Indian Law from 1959

Matthew L.M. Fletcher

Here’s my version of the wins and losses in the Supreme Court from 1959’s Williams v. Lee to 1987’s California v. Cabazon Band. And then from Cabazon Band to the last case (Wagnon). I conclude (similar to Alex Skibine in the North Dakota Law Review and David Getches before him in the California Law Review and the Minnesota Law Review), that tribes have won 12 out of 48 cases (I counted the “ties” as losses because they are more so a loss than anything else) since Cabazon. Prior to and including Cabazon all the back to Williams, tribes won 49 out of 82 cases, a 60 percent “win” rate.

1959-1987

Williams v. Lee (1959) — W

Federal Power Commission v. Tuscarora Indian Nation (1960) — L

United States v. Grand River Dam Authority (1960) — W

Seymour v. Superintendent (1962) — W

Metlakatla Indian Community v. Egan (1962) — W

Organized Village of Kake v. Egan (1962) — L

Arizona v. Californian (1963) — W

Warren Trading Post v. Arizona State Tax Commission (1965) — W

Poafpybitty v. Skelly Oil (1968) — W

Peoria Tribe v. United States (1968) — W

Puyallup Tribe v. Dept. of Game (1968) — L

Menominee Tribe v. United States (1968) — W

Choctaw Nation v. Oklahoma (1970) — W

Tooahnippah v. Hickel (1970) — W

Kennerly v. District Court (1971) — W

United States v. Southern Ute (1971) — L

Affiliated Ute Citizens v. United States (1972) — W

United States v. Jim (1972) — L

Mescalero Apache Tribe v. Jones (1973) — L

McClanahan v. State Tax Commission of Arizona (1973) — W

Keeble v. United States (1973) — W

United States v. Mason (1973) — L

Mattz v. Arnett (1973) — W

Department of Game v. Puyallup Tribe (1973) — L

Oneida Indian Nation v. Oneida County (1974) — W

Morton v. Ruiz (1974) — L

Morton v. Mancari (1974) — W

United States v. Mazurie (1975) — W

Antoine v. Washington (1975) — W

DeCoteau v. District Court (1975) — L

Fisher v. District Court (1976) — W

Colorado River Water Conservation Dist. v. United States (1976) — L

Moe v. Confederated Salish and Kootenai Tribes (1976) — W

Northern Cheyenne Tribe v. Hollowbreast (1976) — W

Cappaert v. United States (1976) — W

Bryan v. Itasca County (1976) — W

Delaware Tribal Business Committee v. Weeks (1977) — W

Rosebud Sioux Tribe v. Kneip (1977) — L

United States v. Antelope (1977) — W

Puyallup Tribe v. Dept. of Game (1977) — W

Finch v. United States (1977) — GVR

Oliphant v. Suquamish Indian Tribe (1978) — L

United States v. Wheeler (1978) — L

Santa Clara Pueblo v. Martinez (1978) — W

United States v. John (1978) — W

Washington v. Yakima Indian Nation (1979) — L

Wilson v. Omaha Tribe (1979) — L

Washington v. Fishing Vessel (1979) — W

State of Idaho ex rel. Evans v. Oregon & Washington (1980) — L

United States v. Clarke (1980) — L

United States v. Mitchell (1980) — L

Andrus v. Glover Constr. Co. (1980) — L

Washington v. Confederated Colville Tribes (1980) — L

Central Machinery v. Arizona State Tax Commission (1980) — W

White Mountain Apache Tribe v. Bracker (1980) — W

United States v. Sioux Nation (1980) — W

Montana v. United States (1981) — L

Merrion v. Jicarilla Apache Tribe (1982) — W

Ramah Navajo School Board v. Bureau of Revenue of New Mexico (1982) — W

Arizona v. California (1983) — W

New Mexico v. Mescalero Apache Tribe (1983) — W

Nevada v. United States (1983) — L

United States v. Mitchell (1983) — W

Rice v. Rehner (1983) — L

Arizona v. San Carlos Apache Tribe (1983) — L

Solem v. Bartlett (1984) — W

Escondido Mut. Water Co. v. Mission Indians (1984) — L

Three Affiliated v. Wold Engineering (1984) — W

United States v. Dann (1985) — L

Oneida County v. Oneida Indian Nation (1985) — W

Kerr-McGee v. Navajo Tribe (1985) — W

National Farmers Union v. Crow Tribe (1985) — W

Montana v. Blackfeet Tribe(1985) — W

Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana (1985) — L

Oregon Dept. of Fish and Wildlife v. Klamath Indian Tribe (1985) — L

Cal. State Board of Equalization v. Chemehuevi Indian Tribe (1985) — L

South Carolina v. Catawba Indian Tribe (1986) — L

United States v. Mottaz (1986) — L

United States v. Dion (1986) — L

Bowen v. Roy (1986) — L

Three Affiliated v. Wold Engineering (1986) — W

Iowa Mutual v. LaPlante (1987) — W

California v. Cabazon Band (1987) — W

49 wins — 33 losses — 60 percent “win” rate

1987-present

United States v. Cherokee Nation (1987) — L

Hodel v. Irving (1987) –L

Lyng v. Northwest Indian Cemetery (1988) — L

Employment Division v. Smith (1988) — L

Oklahoma Tax Commission v. Graham (1989) — L

Mississippi Band of Choctaw Indians v. Holyfield (1989) — W

Cotton Petroleum v. New Mexico (1989) — L

Brendale v. Yakima Indian Nation (1989) — L

Employment Division v. Smith (1990) — L

Wyoming v. United States (1990) — W

Duro v. Reina (1990) — L

Oklahoma Tax Commission v. Citizen Potawatomi (1991) — W

Blatchford v. Native Village of Noatak (1991) — L

County of Yakima v. Yakima Indian Nation (1992) — L

Negonsott v. Samuels (1993) — L

Oklahoma Tax Commission v. Sac and Fox Nation (1993) — W

Lincoln v. Vigil (1993) — L

South Dakota v. Bourland (1993) — L

Hagen v. Utah (1994) — L

Department of Taxation and Finance of New York v. Milhelm Attea (1994) — L

Oklahoma Tax Commission v. Chickasaw Nation (1995) — W

Seminole Tribe v. Florida (1996) — L

Babbitt v. Youpee (1997) — L

Strate v. A-1 (1997) — L

Idaho v. Coeur d’Alene Tribe (1997) — L

South Dakota v. Yankton Sioux Tribe (1998) — L

Alaska v. Native Village of Venetie (1998) — L

Montana v. Crow Tribe (1998) — L

Kiowa Tribe v. Manufacturing Techs. (1998) — W

Cass County v. Leech Lake Band of Chippewa Indians (1998) — L

Arizona Dept. of Revenue v. Blaze Constr. (1999) — L

Minnesota v. Mille Lacs (1999) — W

Amoco Production v. Southern Ute (1999) — L

Rice v. Cayetano (2000) — L

Arizona v. California (2000) — W

Dept. of Interior v. Klamath Water Users (2001) — L

C&L Enters v. Citizen Potawatomi (2001) — L

Atkinson Trading v. Shirley (2001) — L

Idaho v. United States (2001) — W

Nevada v. Hicks (2001) — L

Chickasaw Nation v. United States (2001) — L

United States v. White Mountain Apache Tribe (2003) — W

United States v. Navajo Nation (2003) — L

Inyo County v. Bishop Paiute (2003) — L

United States v. Lara (2004) — W

Cherokee Nation v. Leavitt (2005) — W

Sherrill v. Oneida Indian Nation (2005) — L

Wagnon v. Prairie Band Potawatomi Nation (2005) — L

12 wins — 36 losses — 25 percent win rate