Grant Christensen on Using Consent to Expand Tribal Criminal Jurisdiction

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.

Trevor Reed on Fair Use and Cultural Appropriation of Indigenous IP

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”

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.

Jessica Shoemaker on Reclaiming Modern Indigenous Land Tenures

Jessica Shoemaker has posted “Transforming Property: Reclaiming Modern Indigenous Land Tenures,” forthcoming in the California Law Review.

Here is the abstract:

This Article challenges existing narratives about the future of American Indian land tenure. The current highly-federalized system for reservation property is deeply problematic. In particular, the trust status of many reservation lands is expensive, bureaucratic, controlling, and linked to persistent poverty in many reservation communities. Yet, for complex reasons, trust property has proven largely immune from fundamental reform. Today, there seem to be two primary options floated for the future: a “do the best with what we have” approach that largely accepts core problems with trust, perhaps with some minor efficiency-oriented tinkering, for the sake of the benefits and security it does provide, or a return to old, already-failed reform strategies focused on simply “liberating” American Indian people with a forced transition to state-based fee-simple property. Both strategies respond, sometimes implicitly, to deep impulses about how property should work, especially in a market economy, but both also neglect sufficient respect for the true potential of more autonomous indigenous property regimes.

This Article engages property theory and related work on property system change to make the case for more radical institutional land reform as a realistic alternative choice, even in the complex and multi-layered environment of existing reservations. Property systems are full of dynamic, pluralistic potential, and property powerfully shapes the contours of both human communities and physical landscapes. This Article unearths this existing potential and charts a series of alternative steps, driven primarily by respect for tribal governments’ own actions and choices, to reclaim new, modern versions of indigenous land tenures within reservation spaces.

California Law Review Comment on Indian Gaming and Worker’s Rights

Jonathan Guss has published “Gaming Sovereignty? A Plea for Protecting Worker’s Rights While Preserving Tribal Sovereignty” (PDF) in the California Law Review.

Here is the abstract:

Tribally owned gaming facilities have become an increasingly popular vehicle for economic development throughout Indian Country. As an incidental consequence of this industry’s growth, many non-tribal members now come into contact with tribal-gaming enterprises as either customers or employees. Consequently, tribal gaming establishments have become a vital nexus in battles over what tribal sovereignty should entail in a modern social and economic context. Indeed, the legal framework surrounding these entities highlights a central tension within our modern-day federal Indian law regime-one that often forces tribal governments to choose between maintaining absolute sovereign self-governance on the one hand, and providing modes of economic development, such as gaming, on the other. Both state and federal authorities play a role in the often complex regulatory structure around labor relations at tribal-gaming facilities. This means that non-tribal members may take labor and employment disputes outside of tribal laws and courts-a situation that tribes regard as an incursion upon tribal sovereignty. Nonetheless, labor advocates argue that the opposite situation would give tribal employers little incentive to give fair, adequate protections to their workers.

This Comment seeks to address the tension between tribal sovereignty and workers’ rights by proposing a positive approach. In concrete terms, this approach seeks to funnel labor and employment disputes through tribal courts by strengthening tribal labor and employment laws and alternative dispute resolution systems. The positive approach represents a third way to tribal sovereignty- where tribes, much like other nation-states facing the perils of globalization, can navigate global and local power networks from a position of strength rather than remain outside of them. The positive approach can also benefit workers by creating a strong internal tribal authority to protect labor and employment rights and by fostering opportunities for tribes to settle disputes through traditional or culturally based dispute resolution practices. This approach is in stark contrast to the decidedly anti-worker positions that some tribes have recently adopted by passing right-to-work laws and waging court battles against unfavorable shifts in the law. While the positive approach has the significant drawback of curbing some traditional elements of tribal sovereignty, its chief strength is its pragmatism, in that it works within, rather than against, recent shifts in federal Indian law jurisprudence. The approach can also provide a blueprint for economic development and tribal self-governance that can successfully coexist.

Carpenter & Riley: “Indigenous Peoples and the Jurisgenerative Moment in Human Rights”

Kristen A. Carpenter & Angela R. Riley have published “Indigenous Peoples and the Jurisgenerative Moment in Human Rights” (PDF) in the California Law Review.

Here is the abstract:

As indigenous peoples have become actively engaged in the human rights movement around the world, the sphere of international law, once deployed as a tool of imperial power and conquest, has begun to change shape. Increasingly, international human rights law serves as a basis for indigenous peoples’ claims against states and even influences indigenous groups’ internal processes of decolonization and revitalization. Empowered by a growing body of human rights instruments, some as embryonic as the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), indigenous peoples are embracing a global “human rights culture” to articulate rights ranging from individual freedom and equality to collective self-determination, property, and culture. Accordingly, this Essay identifies and provides an account of what we see as an unprecedented, but decidedly observable, phenomenon: the current state of indigenous peoples’ rights-manifesting in tribal, national, and international legal systems-reflects the convergence of a set of dynamic, mutually reinforcing conditions. The intersection of the rise of international human rights with paradigm shifts in postcolonial theory has, we argue, triggered a “jurisgenerative moment” in indigenous rights. Bringing indigenous norms and values to their advocacy, indigenous peoples have worked to assert their voices in, and indeed to influence, the human rights movement. Indigenous peoples are now using the laws and language of human rights, shaped by indigenous experiences, not only to engage states but also as a tool of internal reform in tribal governance. This is, in our view, a jurisgenerative moment in indigenous rights-a moment when both the concept and practice of human rights have the potential to become more capacious and reflect the ways that individuals and peoples around the globe live, and want to live, today.


Katherine Florey on Tribal Court Jurisdiction

Katherine Florey has published “Beyond Uniqueness: Reimagining Tribal Courts’ Jurisdiction” (PDF) in the California Law Review. The abstract:

If there is one point about tribal status that the Supreme Court has stressed for decades, if not centuries, it is the notion that tribes as political entities are utterly one of a kind. This is to some extent reasonable; tribes, unlike other governments, have suffered the painful history of colonial conquest, making some distinctive treatment eminently justifiable. But recent developments have demonstrated that, for many tribes, uniqueness has its disadvantages. In the past few decades, the Supreme Court has undertaken a near-complete dismantling of tribal civil jurisdiction over nonmembers. Under current law, tribes have virtually no authority to permit nonmembers to be haled into tribal courts-even when nonmembers have significant ties to the tribe and have come onto the reservation for personal gain. Tribal uniqueness has thus come to include tribes’ singular inability to exercise jurisdiction over nonmembers, despite the reality that people and commerce move freely across tribal and nontribal land. 

This is a mistake. Tribal court jurisdiction has much in common with broader notions of personal jurisdiction, and the Court’s failure to recognize this commonality limits and distorts its analysis. Indeed, no good reason exists why current personal jurisdiction doctrines could not be adapted to encompass the issues that tribal court jurisdiction presents; that is true even if one concedes various premises of the Court’s opinions, such as the idea that it is inherently burdensome in most cases for nonmembers to defend in tribal court. Personal jurisdiction doctrine is perfectly suited to addressing the often-complex fact patterns that characterize modern disputes involving Indian country because minimum contacts analysis allows courts to take a nuanced, flexible view of the degree of connection between the defendant and the forum. For these reasons, this Article argues that limitations on tribal court jurisdiction over nonmembers should be recharacterized as limits on personal jurisdiction. This would both harmonize tribal courts’ jurisdiction with that of federal and state courts, and do a better job than current doctrine in balancing the legitimate interests of both tribes and nonmember defendants.

California Law Review Comment on Duroville Receivership

Ziwei Hu has published “Equity’s New Frontier: Receiverships in Indian Country” in the California Law Review.

The abstract:

Southern California’s Coachella Valley is one of the poorest regions in the country. Its location in Riverside County-which is within close proximity to some of the nation’s wealthiest citizens and also the U.S.-Mexico border-along with the county’s dependence onthe agriculture industry has contributed to a significant demand for low-wage farm workers, who often have a mix of immigration statuses. Historical, political, and socioeconomic factors have compounded to limit affordable housing options in the Coachella Valley for these farm workers and have generated the proliferation of illegal trailer parks with egregious habitability concerns on the vast swathes of Indian country throughout the county. Tribal sovereignty renders these parks beyond the reach of prophylactic state and local laws that would otherwise protect the health, safety, and welfare of the parks’ residents. Consequently, these parks are subject only to the jurisdiction of federal courts. In United States v. Duro, a federal judge appointed a receiver to oversee urgent infrastructure improvements in Duroville, one of the largest parks. Receivership is arguably the strongest and most invasive articulation of a court’s equitable powers because it strips a party of his property rights and vests control of the property in question to a third party that is accountable only to the court. The court’s action in appointing a receiver was a key factor in the provision of a safe relocation site for Duroville’s residents, which required a concerted effort by the County, the State, and a private housing developer. This Comment explores the implications that this groundbreaking case has for other trailer parks on Indian country in the Coachella Valley. Ultimately, it concludes that the Duroville receivership was a necessary and legitimate extension of the court’s equitable powers and that receivership can be an effective means both to remedy urgent habitability problems in other trailer parks on Indian land and to spur local government actors to work towards providing decent, safe, and affordable housing alternatives for residents of these parks.

We posted on United States v. Duro here.

Kristen Carpenter and Angela Riley: “The Jurisgenerative Moment in Indigenous Human Rights”

Kristen A. Carpenter and Angela R. Riley have posted their paper, “The Jurisgenerative Moment in Indigenous Human Rights,” on SSRN. It is forthcoming in the California Law Review.

Here is the abstract:

As indigenous peoples have become actively engaged in the human rights movement around the world, the sphere of international law, once deployed as a tool of imperial power and conquest, has begun to change shape. International human rights law is now serving as a basis for indigenous peoples’ claims against states and even influencing indigenous groups’ internal processes of decolonization. In this Article, we set out to document and provide a theoretical account of an unprecedented, but decidedly observable, phenomenon: the current moment in indigenous human rights law – manifesting at the tribal, national, and international levels – reflects the convergence of a set of inter-dynamic, mutually reinforcing conditions. The intersection of the rise of international human rights with paradigm shifts in post-colonial theory has, we argue, triggered a “jurisgenerative moment” in human rights law, one that pervades law-making at every level of human experience, and now recognizes indigenous peoples not only as subjects of human rights law entitled to individual rights in the conventional sense but also as “peoples” with interests in self-determination, equality, and cultural survival. Beyond identifying and framing this current moment, this Article also begins to bridge vital conversations occurring among contemporary international law scholars, on the one hand, and indigenous legal scholars on the other, about the formation of human rights law and the extent to which it makes a difference. Using examples of legal implementation on the ground, we examine indigenous human rights development at the tribal, national, and international levels. Through this account — historical, descriptive, theoretical, and exemplary — we describe a jurisgenerative moment in human rights taking shape in indigenous communities today, with the capacity to change the way we think about and realize human rights for all people.