California Law Review

Lauren van Schilfgaarde on Natives as Federal Taxpayers

Matthew L.M. Fletcher

Lauren van Schilfgaarde has posted “Civilized Enough to Tax: Natives as Federal Income Taxpayers,” forthcoming in the California Law Review, on SSRN.

Here is the abstract:

What does it mean to condition federal tax liability on the degree to which a Native American has assimilated? Federal Indian law has long assumed that Native Americans are subject to federal income taxation absent an express exemption. This presumption obscures the complicated history by which Native Americans were incorporated into the federal tax base. While U.S. citizenship alone is not ordinarily dispositive of federal income tax liability, courts have uniquely infused Native citizenship with doctrinal significance, intertwining questions of citizenship, assimilation, sovereignty, and taxation. In doing so, they have neglected the legal reality that Native Americans hold dual citizenship—as citizens of both the United States and their own Tribal nations.

This Article situates Native tax liability within the longer trajectory of federal Indian law. It traces how allotment policy, noncompetence determinations, and the Indian Citizenship Act of 1924 collectively transformed Native Americans from “Indians not taxed” into presumed taxpayers. Courts initially tethered liability to federal declarations of “competence,” using taxation as a tool of assimilation. Competence itself was understood to mark the extinguishment of Native identity: to be a competent citizen was, in law’s eyes, to cease being Indian. Courts relied on this framework in taxation cases well into the mid-twentieth century. Over time, however, competence gave way to citizenship as the doctrinal touchstone. The Supreme Court entrenched the presumption of Native taxability, narrowing exemptions to allotment-based income while disregarding the unresolved meaning of dual citizenship—the coexistence of U.S. citizenship with continued Tribal citizenship. The result is a jurisprudence that collapses political distinctiveness into presumptive assimilation, as if Native peoples could not simultaneously belong to two sovereigns.

By excavating this history, the Article demonstrates that Native income taxation is neither inevitable nor doctrinally coherent. It argues that courts have misapplied statutory canons by privileging the presumption of taxability over the Indian canons of construction, which require clear congressional intent before imposing taxation on Tribal citizens. More fundamentally, taxation doctrine has failed to account for the implications of Native dual citizenship, erasing the sovereign-to-sovereign relationship that the law otherwise recognizes. The Article concludes by advancing a structural reform: redirecting federal income tax paid by Tribal citizens to their Tribal governments. Modeled on existing provisions such as the foreign tax credit, this reform would affirm Native dual citizenship, strengthen Tribal fiscal capacity, and restore coherence to federal tax law. In reframing taxation not as an instrument of assimilation but as an expression of recognition, federal law can more accurately reflect contemporary commitments to Tribal self-determination.

Daniel Rice on Civil Duties and Public Change

Matthew L.M. Fletcher

Daniel B. Rice has posted “Civil Duties and Public Change,” forthcoming in the California Law Review, on SSRN.

Here is the abstract:

What duties do Americans owe the state? Today, this question seems almost incomprehensible. Compulsions in the common interest are received coolly in our rights-obsessed culture, and the Supreme Court has never announced a framework for identifying the burdens of citizenship. Yet the concept of civic duty has played a central role in America’s constitutional tradition. From shoveling snow to repairing roads to fighting overseas, private individuals have long been forced to serve the public in ways menial and profound. Strangely, the discourse of obligation that legitimated numerous compulsions has largely faded from professional view. Judges’ mawkish tributes to liberty pay no heed to the magnitude of state-ordered servitude.

This collective forgetting has not eliminated the need to reason about civic duties, however. Courts continue to review compulsions grounded in contested visions of social obligation. In ruling on the Affordable Care Act’s individual mandate, for example, the Supreme Court seriously impeded Congress from implementing novel conceptions of civic duty. This hostility closely tracks a leading scholarly account of civic duties as fixed by historical tradition. According to this narrative, living Americans are powerless to alter the basic obligations of citizenship.

This Article corrects the historical record by documenting how civic duties have developed over time. The evidence reveals that these obligations are constantly in motion; society has constructed, reshaped, and discarded them in decades-long struggles over the meaning of freedom. Put simply, the duties of citizenship are not fixed features of our constitutional order. They are necessarily—and properly—responsive to moral and cultural change. These findings undercut the Court’s use of rigid historical methodologies for reviewing laws that tacitly presume the existence of duties owed to the public. Most prominently, abortion restrictions compel women to continue their pregnancies in service of state-defined goals. And a panoramic view of civic duties casts new light on congressional efforts to preserve Indian tribes as flourishing governments. The federal Indian Child Welfare Act draws conceptual support from compulsory education and military conscription, both of which have long prioritized communal survival over individual choice.

Tailyr Irvine

Kronk Warner and Lillquist on Tribes and Rights of Nature

Matthew L.M. Fletcher

Elizabeth Ann Kronk Warner and Jensen Lillquist have posted “Laboratories of the Future: Tribes and Rights of Nature,” published in California Law Review, on SSRN. Here is the abstract:

From global challenges such as climate change and mass extinction, to local challenges such as toxic spills and undrinkable water, environmental degradation and the impairment of Earth systems are well documented. Yet, despite this reality, the U.S. federal government has done little in the last thirty years to provide a comprehensive solution to these profound environmental challenges; likewise, significant state action is lacking. In this vacuum, environmental legal advocates are looking for innovative environmental solutions to these challenges. Against this backdrop, rights of nature have increasingly gained traction as a possible legal tool to help protect the natural environment from the harms perpetrated by humans. Rights of nature laws generally have two elements: (1) legal personhood for natural entities, such that nature has standing in court, and (2) substantive rights for natural entities. This Article explores the scope and origins of rights of nature and examines how they are being implemented both within the United States and abroad. It highlights the work being done by Tribes and Indigenous Peoples in this space and argues that, particularly in the United States, state and local governments should learn from this work. Specifically, the work of Tribes in this space can serve as alternative ethical paradigms and laws for non-Native communities looking for an alternative to the status quo. In the United States, Tribes can serve as “laboratories” for environmental change given their tribal sovereignty and environmental ethics. In addition, Tribes exist within a different legal framework from U.S. states and municipalities. By comparing rights of nature-related litigation in Florida and in the White Earth Nation of Ojibwe, it becomes clear that rights of nature provisions adopted by Tribes stand a greater chance of withstanding legal challenge than provisions adopted by municipalities. Accordingly, environmental reform can benefit from the collaboration and experimentation of Tribes.

Jaune Smith

Michael McNally on Indian Sacred Sites

Matthew L.M. Fletcher

Michael D. McNally has published “The Sacred and the Profaned: Protection of Native American Sacred Places That Have Been Desecrated” in the California Law Review. PDF

Here is the abstract:

From Standing Rock to San Francisco Peaks, Native American efforts to protect threatened sacred places in court have been troubled by what this Article identifies as the profanation principle: a presumption that places already profaned or degraded by development or pollution can no longer be sufficiently sacred to Native peoples to merit protection. When the Supreme Court of Hawai’i rejected Native Hawaiian challenges to a massive new telescope on Mauna Kea because its summit was already developed, the sole dissenting justice termed it the “the degradation principle”: a view that because eleven telescopes had already despoiled the summit, the new telescope would cause no substantial adverse impacts on natural and cultural resources. This Article draws on religious studies training to show that, from the Ganges River to Jerusalem’s Western Wall, what makes the holy places of the world’s religions sacred seldom hinges on their natural purity. A presumption that Native American sacred places must be pristine to be authentically sacred is discriminatory, rooted in romanticized stereotypes of Native religions as nature piety rather than complex systems of obligation and relationship to sacred places. If the profanation principle seldom manifests as an explicit legal reason for an outcome, the Article demonstrates how consistently it plays out in cases under religious liberty, historic preservation, and environmental law. The Article suggests moving beyond the profanation principle, likening desecrated sacred places to sick relatives in need of healing and intensifying Native obligations to defend the sacred.

More Jaune Smith . . .

New Student Scholarship on Tribal Citizenship and Blood Quantum

Matthew L.M. Fletcher

Ashleigh Lussenden has published a Note, “Blood Quantum and the Ever-Tightening Chokehold on Tribal Citizenship: The Reproductive Justice Implications of Blood Quantum Requirements,” in the California Law Review. PDF

The abstract:

Blood often serves as the basis for identity for many groups in the United States. Native Americans, however, are the only population in which blood is a requirement for collective belonging and can be the determining factor for whether one receives tribal benefits and services. Many Tribal Nations use blood quantum, the percentage of Indian blood one has, as a bright-line rule to determine qualification for tribal membership. Initially established as a colonial tool of dispossession and assimilation, tribes adopted blood quantum to ensure the preservation of culture and community.

This Article contends that tribal adoption of blood quantum limits tribal members’ reproductive autonomy and violates the tenets of reproductive justice. Forcing tribal members to consider the blood quantum of their future children limits individual choice of partner and the manner in which tribal members choose to build their families. This limitation of autonomy and violation of reproductive justice principles is especially stark when analyzed in combination with contemporary pressures on Native conception and parenting, including urban migration, dysgenic environmental impacts on fertility, sexual violence, and inadequate, underfunded, and abusive reproductive healthcare. Collectively, these pressures decrease fertility, the number of available partners, and the ability for Native people to conceive and parent within their own communities.

By applying the principles of reproductive justice, Tribal Nations may begin to reassess what belonging means in Native communities and how tribal membership policies can support reproductive autonomy. The current rise of nation-building and concentrated push for self-determination in Native communities provides a unique opportunity to interrogate the priorities of tribal membership requirements and reimagine inclusion and collective belonging in Native Nations.

Lauren van Schilfgaarde on Tribal Restorative Justice

Matthew L.M. Fletcher

Lauren van Schilfgaarde has posted “Restorative Justice as Regenerative Tribal Jurisdiction,” forthcoming in the California Law Review, on SSRN. Here is the abstract:

For more than a century, the United States has sought to restrict Tribal governments’ powers over criminal law. These interventions have ranged from the imposition of federal jurisdiction over Indian country crimes to actively dismantling Tribal justice systems. Two particular moves – diminishing Tribal jurisdiction and imposing adversarial approaches on Tribal courts, respectively – have had particularly devastating impacts on Tribal justice and criminal governance systems. In the contemporary era, these developments have severely constrained Tribal approaches to criminal justice reform. Yet in recent years, we’ve begun to witness new trends at the Tribal level. Tribes are increasingly embracing Indigenous-based, restorative justice models, which have regenerated Tribal jurisdiction and enhanced the wellbeing of Tribal members. These trends are both important in their own right, and as an example of Indigenous anti-subordination in criminal justice reform. Indeed, for Tribes, the leading contemporary response to historical oppression is collective “self-determination.” True self-determination requires both internal and external legitimacy. As Tribes pursue freedom from settler-colonial constraints, this Article reveals how restorative justice offers opportunities to “Indigenize” Tribal systems while also reclaiming jurisdictional powers, for the benefit of Tribes and Tribal members, alike.

Highly recommended.

Grant Christensen on Using Consent to Expand Tribal Criminal Jurisdiction

Matthew L.M. Fletcher

Grand Christensen has posted “Using Consent to Expand Tribal Court Criminal Jurisdiction,” forthcoming in the California Law Review, on SSRN.

Navajo police officer photographed by Edward Curtis

Here is the abstract:

In June of 2022 the Supreme Court reversed two-hundred years of precedent and held in a 5-4 opinion that states have concurrent criminal jurisdiction over crimes committed by non-Indians against Indians in Indian country. Oklahoma v. Castro-Huerta. In conducting the preemption analysis Justice Kavanaugh’s majority opinion reasoned that while states have a strong interest in prosecuting crimes in Indian country in order to keep the community safe, tribes had functionally no interest because they generally lack criminal jurisdiction over non-Indians. The court then reasoned that the lack of a tribal interest could not preempt the state interest. This article suggests, despite the general prohibition on tribes asserting criminal jurisdiction over non-Indians that was discovered by the Supreme Court in 1978’s Oliphant opinion, tribes can assert criminal jurisdiction over non-Indians who consent to the jurisdiction in tribal court. The argument extends to both affirmative and implied consent and draws its authority from both pre-Oliphant scholarship and precedent as well as from recent development by the Court, Congress, and dicta from the Ninth Circuit. If tribes are able to regularly assert some criminal jurisdiction over non-Indians, then when lower courts apply Castro-Huerta in the future there will be a strong tribal interest to preempt state criminal jurisdiction in Indian country.

Highly recommended.

Cal. Law Review Online Roundtable: Responding to “Politics, Indian Law, and the Constitution”

Matthew L.M. Fletcher

The article is here.

Trevor Reed on Fair Use and Cultural Appropriation of Indigenous IP

Matthew L.M. Fletcher

Trevor Reed has posted “Fair Use as Cultural Appropriation,” forthcoming in the California Law Review, on SSRN.

Here is the abstract:

Over the last four decades, scholars from diverse disciplines have documented a wide variety of cultural appropriations from Indigenous peoples and the harms these inflict. And yet, there are currently no federal laws other than copyright that limit the appropriation of song, dance, oral history, and other forms of intangible culture. Copyright is admittedly an imperfect fit for combatting cultural appropriations – it is a porous form of protection, allowing some publicly beneficial uses of protected works  without the consent of the copyright owner under certain exceptions, foremost being copyright’s fair use doctrine. This article evaluates fair use as a gate-keeping mechanism for unauthorized uses of culture. As codified in the 1976 Copyright Revision Act, the fair use doctrine’s four-part test is supposed to help fact finders determine whether an unauthorized use of another’s work is reasonable in light of copyright’s goals of promoting  cultural production. But, while the fair use test has evolved to address questions about the purpose behind an appropriation, the amount and substance of the work used, and the effects of the appropriation on the market for the work, the vital inquiry about the “nature” of the original work and the impact of unauthorized appropriation on its creative environment has been all but forgotten by lower federal courts. Combining doctrinal analysis, settler-colonial theory, and ethnographic fieldwork involving ongoing appropriations of copyrightable Indigenous culture, this article shows how this “forgotten factor” in the fair use analysis is key to assessing the real impacts unauthorized appropriations have on culturally diverse forms of creativity. Thus, if we are committed to the development of creativity in all of its varieties and natures, a rehabilitation of the forgotten factor is both urgent and necessary.

Looks like important reading to me.

California Law Review Publishes “Politics, Indian Law, and the Constitution”

Matthew L.M. Fletcher

The article is here. PDF.

The abstract:

The question of whether Congress may create legal classifications based on Indian status under the Fifth Amendment’s Due Process Clause is reaching a critical point. Critics claim the Constitution allows no room to create race- or ancestry-based legal classifications. The critics are wrong.

When it comes to Indian affairs, the Constitution is not colorblind. I argue that, textually, the Indian Commerce Clause and Indians Not Taxed Clause serve as express authorization for Congress to create legal classifications based on Indian race and ancestry, so long as those classifications are not arbitrary, as the Supreme Court stated a century ago in United States v. Sandoval and more recently in Morton v. Mancari.

Should the Supreme Court reconsider those holdings, I suggest there are significant structural reasons as to why the judiciary should refrain from applying strict scrutiny review of congressional legal classifications. The reasons are rooted in the political question doctrine and the institutional incapacity of the judiciary. Who is an Indian is a deeply fraught question that judges have no special institutional capacity to assess.