Connecticut Law Review

UConn Law Review Symposium — Interrogating Haaland v. Brackeen: Family Regulation, Constitutional Power, and Tribal Resilience [October 6, 2023]

Matthew L.M. Fletcher

Here:

The Connecticut Law Review invites you to their 2023 symposium: Interrogating Haaland v. Brackeen: Family Regulation, Constitutional Power, and Tribal Resilience The litigation that led to Haaland v. Brackeen threatened to take down not only the Indian Child Welfare Act, but vast swaths of federal Indian policy and federal law. Instead, the Supreme Court’s decision left ICWA unscathed and affirmed the constitutional relationship between tribal nations and the United States. But threats to Native families and tribal sovereignty continue. Native children continue to be removed from their communities by a market for adoptable children. A handful of states and interest groups continue to seek ways to challenge tribal authority and federal laws that support it. And because the Supreme Court held that the Brackeen plaintiffs lacked standing to raise their equal protection challenges to ICWA, those claims can be raised another day. Leading scholars, attorneys, and tribal leaders will explore these and other issues raised by the decision in this symposium.

Connecticut Law Review Symposium on Brackeen, Oct. 6

Kate Fort

Here.

Connecticut Law Review Symposium: 
Interrogating Haaland v. Brackeen

Family Regulation, Constitutional Power, and Tribal Resilience

Friday, October 6, 2023 | 12:00 pm-2:30 pm ET
Virtual

The Connecticut Law Review invites you to their 2023 symposium:
Interrogating Haaland v. Brackeen: Family Regulation, Constitutional Power, and Tribal Resilience

The litigation that led to Haaland v. Brackeen threatened to take down not only the Indian Child Welfare Act, but vast swaths of federal Indian policy and federal law. Instead, the Supreme Court’s decision left ICWA unscathed and affirmed the constitutional relationship between tribal nations and the United States. But threats to Native families and tribal sovereignty continue.

Native children continue to be removed from their communities by a well-funded market for adoptable children. A handful of states and interest groups continue to seek ways to undermine tribal authority and federal laws that support it. And because the Supreme Court held that the Brackeen plaintiffs lacked standing to raise their equal protection challenges to ICWA, those claims can be raised another day.

Leading scholars, attorneys, and tribal leaders, including Chairwoman Andrews-Maltais, Gregory Ablavsky, Laura Briggs, Seth Davis, Kate Fort, Ian Gershengorn, and Gerald Torres, will explore these and other issues raised by the decision in this symposium.

Student Scholarship on Mashantucket Pequot Tribe v. Town of Ledyard

Matthew L.M. Fletcher

The Connecticut Law Review has published “Mashantucket Pequot Tribe v. Town of Ledyard: The Preemption of State Taxes Under Bracker, the Indian Trader Statutes, and the Indian Gaming Regulatory Act.” It is here on SSRN.

Here is the abstract:

The Indian Tribes of the United States occupy an often ambiguous place in our legal system, and nowhere is that ambiguity more pronounced than in the realm of state taxation. States are, for the most part, preempted from taxing the Indian Tribes, but something unique happens when the state attempts to levy a tax on non-Indian vendors employed by a Tribe for work on a reservation. The state certainly has a significant justification for imposing its tax on non-Indians, but at what point does the non-Indian vendor’s relationship with the Tribe impede the state’s right to tax? What happens when the taxed activity is a sale to the Tribe? And what does it mean when the taxed activity has connections to Indian Gaming?

This Comment explores three preemption standards as they were interpreted by the Second Circuit Court of Appeals in a case between the State of Connecticut and the Mashantucket Pequot Tribe. In deciding whether preemption was the legally required outcome, the Court looked to and applied the landmark preemption analysis case White Mountain Apache Tribe v. Bracker, the Indian Trader Statutes, and the Indian Gaming Regulatory Act. While more than one legally correct outcome exists in this case, this Comment endorses and argues in favor of preemption based on the application of the Indian Gaming Regulatory Act and the preemption analysis required by Bracker.

Kristen Carpenter Publishes “Limiting Principles and Empowering Practices in American Indian Religious Freedom”

Matthew L.M. Fletcher

Kristen A. Carpenter has published her paper, “Limiting Principles and Empowering Practices in American Indian Religious Freedoms” (PDF) in the Connecticut Law Review. We highly recommend this paper.

The abstract:

Employment Division v. Smith was a watershed moment in First Amendment law, with the Supreme Court holding that neutral statutes of general applicability could not burden the free exercise of religion.  Congress’s subsequent attempts, including the passage of Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act, to revive legal protections for religious practice through the legislative and administrative process have received tremendous attention from legal scholars.  Lost in this conversation, however, have been the American Indians at the center of the Smith case.  Indeed, for them, the decision criminalizing the possession of their peyote sacrament was only the last in a series of Supreme Court cases denying American Indian Free Exercise Clause claims. Moreover, the Supreme Court’s Indian cases share a common and previously overlooked feature: in all of them, the Court assessed the Indian claims as too broad or too idiosyncratic to merit Free Exercise Clause protection and instead denied them through a succession of bright line formulations.  Identifying the unrequited search for a “limiting principle” as a basis for analysis, this Article reassesses the religion cases and underlying theoretical questions of institutionalism and equality, in their Indian context.  It then identifies two contemporary policy shifts—namely Congress’s decision to entrust accommodation of Indian religious freedoms to federal agencies and its decision to do so at the tribal, versus individual, level—that have, in some respects, facilitated an “empowering practices” approach to American Indian religious liberties in the post-Smith era.  Taking a descriptive and contextual approach, the Article illuminates opportunities for additional law reform in the American Indian context and also larger questions of institutionalism, equality, and pluralism in religious freedoms law.

Professor Carpenter’s paper already has an impressive impact. Ninth Circuit Judge William A. Fletcher based his keynote address at Berkeley Law School’s symposium on Phil Frickey’s legacy on her paper.

Student Article on Authority of Indian Tribes to Tax Athletes and Performers

Matthew L.M. Fletcher

Here is an interesting piece called “The Power of Indian Tribes to Tax the Income of Professional Athletes and Entertainers Who Perform in Indian Country,” a student note in the Connecticut Law Review.

Here is the abstract:

Athletes and entertainers represent some of the highest paid individuals in the United States today. Historically, these individuals perform in various states throughout the country and pay state income taxes to each state they earn income in. With the recent rise of athletic and entertainment venues in Indian Country, more athletes and entertainers are earning income in Indian Country. For example, the Mohegan Tribe owns and operates the Mohegan Sun Arena on its reservation in Connecticut and the Arena annually hosts hundreds of professional athletic and entertainment events. Because the Mohegan Sun Arena is located in Connecticut, athletes and entertainers who perform at the Arena and receive compensation are currently subject to Connecticut’s state income tax. However, as a federally-recognized Tribe, the Mohegan Tribe possesses the power to tax, including the power to tax non-member Indians doing business on the Mohegan Reservation. Although the Mohegan Tribe does not currently levy an income tax on the athletes and entertainers who perform at the Mohegan Sun Arena, the prospect of double taxation raises the question of which sovereign is really the proper taxing entity — the State or the Tribe? This Note proposes an equitable tax framework that resolves this double taxation quandary.

Connecticut Law Review Note Profiles GTB and Criminal Jurisdiction

Matthew L.M. Fletcher

Benjamin J. Cordiano published “Unspoken Assumptions: Examing Tribal Jurisdiction over Nonmembers Nearly Two Decades after Duro v. Reina” in the Connecticut Law Review. Here is an excerpt from the abstract:

This Note examines the Supreme Court’s reasoning in Duro and uses nearly twenty years of anecdotal evidence, case law, and congressional findings to show that the Court relied on flawed assumptions about the nature of nonmember criminal jurisdiction in the modern tribal context. By examining the modern realities of two tribes, the Grand Traverse Band of Ottawa and Chippewa Indians and the Confederated Tribes of the Colville Reservation, this Note concludes that the Supreme Court’s reasoning in Duro is flawed and that criminal jurisdiction over nonmember Indians is crucial to tribal self-governance and maintenance of reservation life.