Boston College Law Review

New Scholarship on Impacts of Excepting Alaska Natives from Federal Indian Law

Matthew L.M. Fletcher

Here is Samuel Gottstein’s “An Era Of Continued Neglect: Assessing the Impact of Congressional Exemptions for Alaska Natives,” published in the Boston College Law Review.

The abstract:

Although Native Americans in the contiguous United States have benefited from recent congressional reforms, Alaska Native communities were largely ignored. Despite the widely acknowledged crisis of sexual assault and domestic violence in rural Alaska Native communities, Congress has explicitly exempted Alaska from legislation that would otherwise give people in these communities the ability to protect themselves. Although public outcry has prompted pending legislation in Congress to repeal some of these exemptions, such as the Alaska Safe Families and Villages Act, even that legislation does not go far enough to achieve a permanent and effective solution to what is a life-or-death problem for many Alaska Natives. This Note argues that Congress and the State of Alaska should expand Alaska Native tribal sovereignty to give Alaska Native communities the ability to stem the tide of this epidemic.

Forthcoming B.C. Law Review Note on the Impact of Congressional Exemptions for Alaska Natives

Matthew L.M. Fletcher

The Boston College Law Review will publish “An Era of Continued Neglect: Assessing the Impact of Congressional Exemptions for Alaska Natives,” now posted on SSRN.

Here is the abstract:

This Note examines Congress’s recent efforts at reforming Native American criminal justice systems while exempting Alaska Natives. This Note argues that Congress and the State of Alaska should expand Alaska Native tribal sovereignty to allow Alaska Native tribes to prosecute crimes like domestic violence and sexual assault in order to more effectively promote safety and justice in rural Alaskan communities.

New Article on Tribal Immunity and Tribal Governance

Matthew L.M. Fletcher3 Comments

Katherine Florey has published her paper (workshopped at MSU!), “Indian Country’s Borders: Territoriality, Immunity, and the Construction of Tribal Sovereignty,” in the Boston College Law Review.

Here is the abstract:

This Article explores the consequences of an anomaly in the Supreme Court’s Indian law jurisprudence. In the past few decades, the Court has sharply limited the regulatory powers of tribal governments and the jurisdiction of tribal courts while leaving intact the sovereign immunity that tribes have traditionally enjoyed. The result has been that tribes can avoid the effects of otherwise-applicable state and federal law, while at the same time they lack any affirmative powers to regulate events within their territory. This Article argues that this state of affairs is untenable. This Article first suggests that for tribes to exist as effective governments, their sovereign authority must have a territorial component. The Article then discusses the undesirable consequences of tribal sovereign immunity, including a lack of government accountability, increased uncertainty about the law’s reach, and inadequate compensation for tort victims. Ultimately, this Article concludes that, although it may be tempting for tribal advocates to embrace tribal sovereign immunity when the Supreme Court seems disinclined to preserve other elements of tribal sovereignty, relying on immunity as the cornerstone of sovereignty would be a mistake. Instead, tribes should take steps to strengthen the territorial component of their sovereign status.

The abstract looks interesting, though I am wary of arguments continuing to perpetuate the Supreme Court’s gross misrepresentation that tribal sovereign immunity developed “by accident.” Of course, the Court’s first tribal immunity cases a hundred years ago were strange manifestations of the guardian-ward relationship — an “accident” of Indian law jurisprudence to be sure. Regardless of whether the Court or the Constitution says so (actually, the Constitution does say so), Indian tribes are sovereigns, and like all sovereigns in American law, they are entitled to immunity from suit.

Continue reading →