Alex Skibine on the Tribal Right to Exclude Nonmembers

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.

Highly recommended!

American Indian Law Review New Issue — Vol. 44, No. 2

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Current Issue: Volume 44, Number 2 (2020)

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The Court of Indian Appeals: America’s Forgotten Federal Appellate Court
Chief Judge Gregory D. Smith and Bailee L. Plemmons

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Special Feature

American Indian Law Review, Volume 44, Issue 1

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Front Pages   PDF

Article

How the New Deal Became a Raw Deal for Indian Nations: Justice Stanley Reed and the Tee-Hit-Ton Decision on Indian Title – Kent McNeil   PDF

Comments

Keeping Cultural Bias Out of the Courtroom: How ICWA “Qualified Expert Witnesses” Make a Difference – Elizabeth Low   PDF

Being Uighur . . . with “Chinese Characteristics”: Analyzing China’s Legal Crusade Against Uighur Identity – Brennan Davis   PDF

Notes

United States v. Bryant: The Results of Upholding Women’s Rights and Tribal Sovereignty – Madalynn Martin   PDF

What Are the Odds? The Potential for Tribal Control of Sports Gambling After Murphy v. NCAA – Haley Maynard   PDF

Special Feature

Thickening the Thin Blue Line in Indian Country: Affirming Tribal Authority to Arrest Non-Indians – Alex Treiger   PDF

American Indian Law Review, Volume 43, Issue 2

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Current Issue: Volume 43, Number 2 (2019)

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American Indian Law Review Vol. 43, Issue 1 Now Available

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Articles

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Special Feature

New Issue of American Indian Law Review

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Current Issue: Volume 43, Number 1 (2018)

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New Issue of American Indian Law Review

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Articles

The Fairness of Tribal Court Juries and Non-Indian Defendants – Julia M. Bedell   PDF

Access to Energy in Indian Country: The Difficulties of Self-Determination in Renewable Energy Development – Nicholas M. Ravotti   PDF

Federal Indian Law in the New Administration

States and Their American Indian Citizens – Matthew L.M. Fletcher   PDF

The Tribal Labor Sovereignty Act: Do Indian Tribes Finally Hold a Trump Card? – Vicki J. Limas   PDF

Continuing to Work for Indian Country in the 115th Congress – T. Michael Andrews   PDF

Comments

Mega Sporting Events Procedures and Human Rights: Developing an Inclusive Framework – Abby Meaders Henderson   PDF

Improving Microfinance Through International Agreements and Tailoring the System to Assist Indigenous Populations – Jacob Krysiak   PDF

Indigenous People, Human Rights, and Consultation: The Dakota Access Pipeline – Walter H. Mengden IV   PDF

Note

Yellowbear v. Lampert— Putting Teeth into the Religious Land Use and Institutionalized Person Act of 2000 – Nathan Lobaugh   PDF

Special Feature

Winner, Best Appellate Brief in the 2017 Native American Law Student Association Moot Court Competition – Devon Suarez & Simon Goldenberg   PDF

Fletcher Paper on States and American Indian Citizenship Rights (+ ICWA)

Here is “States and Their American Indian Citizens,” recently published in the American Indian Law Review.

An excerpt:

This article is intended to provide a theoretical framework for tribal advocates seeking to approach state and local governments to discuss cooperation with Indian nations, with a special emphasis on Indian child welfare. While the federal government has a special trust relationship with Indians and Indian nations, Indian people are also citizens and residents of the states in which they live. Thus, states have obligations to Indians as well.

This article posits the fairly controversial and novel position that states have obligations to guarantee equal protection to all citizens, including American Indians (and non-Indians) residing in Indian country. In other words, states have an affirmative obligation to ensure that reservation residents, Indian and non-Indian, receive the same services from states that off-reservation residents receive.

2017-2018 American Indian Law Review Writing Competition Announcement

Here, from AILR:

AILR has proudly served Native communities since 1973, and each year at this time we encourage law students nationwide to participate in this, the longest-running competition of its kind.  Papers will be accepted on any legal issue specifically concerning American Indians or other indigenous peoples.  Three cash prizes will be awarded, including $1,000 for the first place winner.

The competition is open to all students enrolled in J.D. or graduate law programs at accredited law schools as of the competition deadline of Jan. 31, 2018.  Winners will be announced on or before May 1, 2018.

Rules Sheet 2017-18 – final

The full rules sheet is available at http://www.law.ou.edu/faculty-and-scholarship/journals/american-indian-law-review/writing-competition.

Current Issue of American Indian Law Review (Vol. 41, No. 1)

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Vol. 41, No. 1 (2016-2017)

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Article

Capital, Inequality, and Self-Determination: Creating a Sovereign Financial System for Native American Nations – W. Gregory Guedel, Ph.D and J. D. Colbert

Comments

Why Indigenous Peoples’ Property Rights Matter: Why the United Nations Declaration on the Rights of Indigenous Peoples May Be Used to Condemn Isis and the State of Iraq for Their Failure to Protect the Property Rights of Indigenous Peoples in the Nineveh Plains – Brooke E. Hamilton

Defending the Cobell Buy-Back Program – Rebekah Martin

Intellectual Property Rights and Informed Consent in American Indian Communities: Legal and Ethical Issues– Naomi Palosaari

Raising Capital in Indian Country – Evan Way
Note

Christman v. Confederated Tribes of Grand Ronde: A Chapter in the Disenrollment Epidemic – Tabitha Minke


Special Features

The Dynamic Legal Environment of Daily Fantasy Sports – Elizabeth Lohah Homer

Trespass to Culture: The Bioethics of Indigenous Populations’ Informed Consent in Mainstream Genetic Research Paradigms – Alexandra Winters