Alexander Tallchief Skibine has posted “The Tribal Right to Exclude Non-Tribal Members from Indian-Owned Lands,” forthcoming from the American Indian Law Review, on SSRN.
Here is the abstract:
In 1981, the Supreme Court issued its decision in Montana v. United States, severely restricting the ability of Indian Tribes to assume civil regulatory and adjudicatory jurisdiction over non-tribal members for activities taking place on non-Indian lands within Indian reservations. The Court in Montana stated that “it could readily agree” with the Court of Appeals’ holding that the tribe could regulate the conduct of non-member on tribal lands. Yet, twenty years later, the Court issued its opinion in Nevada v. Hicks holding that in certain circumstances, the jurisdiction of Indian tribes could also be limited even if the activities of the non-members took place on Indian-owned lands.
It has been almost twenty years since Hicks and because of the cryptic and fractured nature of that decision, the federal circuits are divided and still trying to figure out under what circumstances tribal civil jurisdiction over non-members should be restricted when these activities take place on Indian-owned lands.
In this Article, I argue that among all the possible interpretations of Hicks, the one adopted by the Ninth Circuit makes the most sense. Under that interpretation, the so-called Montana framework used to divest tribes of jurisdiction is not applicable to cases where a tribe has retained the right to exclude. I argue that Hicks can be reasonably conceptualized as endorsing the 9th Circuit methodology. However, I also argue that Hicks should have been decided as a state jurisdiction cases and not a tribal divestiture of inherent sovereignty case. Re-imagining Hicks as a state jurisdiction case would not have changed the outcome but would have avoided the last twenty years of confusion surrounding how Hicks should be interpreted.
Alex Tallchief Skibine has published “Using the New Equal Protection to Challenge Federal Control over Tribal Lands” in the Public Land and Resources Law Review.
Here is an excerpt of the conclusion of the article:
Indian tribes and their members are probably the only people who are subject to federal restrictions on the management of their own lands because of their status. While the law prevented Indians from successfully challenging these restrictions on equal protection grounds, recent development in equal protection jurisprudence has opened new possibilities. This article [argues] that while congressional restrictions imposed on Indians pursuant to the Indian Commerce Clause do not create racial classifications, these laws can be successfully challenged on equal protection grounds alleging that they were either enacted pursuant to unconstitutional animus or are not rationally tied to the true congressional purpose behind the legislation.
Alex Tallchief Skibine has posted his paper, “Culture Talk or Culture War in Federal Indian Law?“, forthcoming in the Tulsa Law Review (2010).
Here is the abstract:
In this article, I ask whether in the area of Native American cultural and religious rights federal law is more inclined towards “culture talk” meaning accommodations and compromises, or whether the attitude is more one of “culture war,” meaning geared towards confrontation and intolerance. I answer the question by focusing on how the law has treated Native American rights in four areas: use of peyote and controlled substances, possession of eagle feathers, implementation of the Native American Graves Protection Act, and protection of sacred sites. Not surprisingly, I conclude that there are both culture talks and culture wars going on. On the other hand, perhaps surprisingly, I find that among the three branches of the federal government, the courts have been the least willing to accommodate Native cultural and religious interests
Alex Skibine has posted “Formalism and Judicial Supremacy in Federal Indian Common Law,” forthcoming in the American Indian Law Review. Here is the abstract:
In this article, Professor Skibine shows how in the last thirty years or so, the United States Supreme court has taken legal principles based on functionalism and transformed them into inflexible rules based on formalism. This has allowed the Court not only to rule against Indian tribal interests in 80% of its cases but also to achieve judicial supremacy in the field of Federal Indian law.