Dylan Hedden-Nicely on Castro-Huerta

Dylan Hedden-Nicely has posted “The Terms of their Deal: Revitalizing the Treaty Right to Limit State Jurisdiction in Indian Country” on SSRN.

The abstract:

For over two hundred years the “whole course of judicial decision” in the United States has recognized that American Indian tribes possess inherent sovereignty to govern their lands and people. Federal recognition of that sovereignty was memorialized in countless treaties, congressionally ratified agreements, and executive orders setting aside reservations throughout the United States. Throughout that same period, and with only minimal exception, the judiciary faithfully applied those treaties to protect tribal property rights, recognize tribal sovereignty, and to bar states from imposing jurisdiction within Indian Country.

The jurisprudence in this arena has shifted, however, over the past few decades. Although the Supreme Court continues to faithfully apply its longstanding treaty analysis to protect tribal property rights, it has moved away from using that same analysis when evaluating tribal sovereignty and the scope of state jurisdiction in Indian Country. Instead, as demonstrated by its recent decision in Oklahoma v. Castro-Huerta, the Court has articulated a preemption test that is determined by judicial balancing of the tribal, federal, and state interests in the subject matter the state seeks to regulate. The approach has long been criticized for allowing courts to usurp the legislative power of Congress to make policy in federal Indian law in order to “reach outcomes consistent with their own notions of how much tribal autonomy there ought to be.” The purpose of this article is to establish that this so-called balancing test has no basis in the foundational principles of federal Indian law. Instead, the broad sweep of the field demonstrates that tribal freedom from state jurisdiction within Indian Country should proceed as a treaty right analysis.

That analysis requires courts to determine whether the treaty at issue preempts state law within the reservation. In making that determination, courts must interpret the treaty consistent with background principles of tribal sovereignty, which necessitates that ambiguities be resolved in favor of the tribe and that any sovereignty not expressly ceded has been retained. Applying these principles, the Supreme Court has repeatedly found that the treaty right to a “permanent home” implicitly included the right for tribes to “govern themselves, free from state interference.” Once established, a treaty right may only be taken away by Congress. Once again, however, there remains a strong presumption against the abrogation of tribal sovereignty. Thus, the Court has consistently required there be “clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.”

This article seeks to demonstrate that the Court’s treaty-based analysis of tribal sovereignty should be applied by the judiciary moving forward. It is preferable not only because it is more consistent with foundation principles of federal Indian law but also bedrock constitutional principles as well as basic twenty-first century domestic and international norms related to the treatment of indigenous peoples and self-determination.

Highly recommended!

Talton was probably a white guy.

Dylan Hedden-Nicely and Stacy Leeds on McGirt and the Future of Federal Indian Law

Dylan Hedden-Nicely and Stacy Leeds have posted “A Familiar Crossroads: McGirt v. Oklahoma and the Future of the Federal Indian Law Canon” on SSRN. The paper is forthcoming in the New Mexico Law Review.

The abstract:

Federal Indian law forms part of the bedrock of American jurisprudence. Indeed, critical parts of the pre-civil war constitutional canon were defined in federal Indian law cases that simultaneously provided legal justification for American westward expansion onto unceded Indian lands. As a result, federal Indian law makes up an inextricable part of American rule of law. Despite its importance, federal Indian law follows a long and circuitous road that requires “wander[ing] the maze of Indian statutes and case law tracing back [over] 100 years.” That road has long oscillated between two poles, with the Supreme Court sometimes applying foundational principles that view tribes as sovereigns “retaining all their original natural rights,” and at other times treating tribes as mere “wards subject to a [self-imposed] guardian.”

Supreme Court respect for tribal sovereignty and self-determination reached its zenith in the so-called “modern era” of federal Indian law, spanning from 1959 through the late 1970s. During this era, the Court tended to adhere to federal Indian jurisprudence and solidified a relatively coherent doctrine based upon the foundational principles developed in the 1830s. The late Dean David Getches described the modern era as a time that “encouraged a reinvigoration of tribal governments throughout the country. During this period, tribes gained political influence and economic security as [the federal government] generally promoted a policy of tribal self-determination.”

The Court turned away from its foundational Indian law principles with the onset of the 1980s and the departure intensified as Chief Justice William Rehnquist was appointed chief justice in 1986. Since then, the touchstone of the Supreme Court’s federal Indian jurisprudence has been to employ a “subjectivist” approach whereby it “gauges tribal sovereignty as a function of changing conditions”—demographic, social, political, and economic—and the expectations of non-Indians that may be potentially by the exercise of tribal power. As a result, the Supreme Court became a strikingly hostile place for American Indian tribes as the Court became increasingly willing to divest tribes of governmental powers, not by upholding the enactments of Congress, but through its own interpretation of what tribal inherent governmental rights ought to be.

The appointment of Justice Sonia Sotomayor and, more recently, Justice Neil Gorsuch seems to have brought change to the Court’s direction in Indian law cases. Since then, cases have been consistently decided in favor of tribal litigants by reaffirming treaty rights through the application of foundational principles that focus on the plain language of treaties and the application of the Indian canons of construction. However, to be sure, even the Rehnquist Court did “recite[] and sometimes act[] upon foundation principles,” but those cases were limited to situations where “non-Indian interests [were] not seriously threatened.” All of Indian Country waited for, or perhaps dreaded, a true litmus test.

That test came to the Supreme Court in the form of two Indian law cases—Sharp v. Murphy and McGirt v. Oklahoma—both of which were framed by non-Indian parties to affect the interests of an estimated 1.8 million people in eastern half Oklahoma. Ready or not, Indian Country found its test case, which squarely placed the Court’s competing jurisprudential philosophies— its foundation principles versus its “subjectivist” approach—on a collision course.

In a powerful and uncharacteristically passionate decision, Justice Gorsuch wrote for a 5-4 majority, upholding treaty-based rights to re-recognize the historic reservation boundaries of the Muscogee (Creek) Nation, the fourth largest Indigenous nation in the United States. The decision was the fourth consecutive treaty-rights victory and seemed to solidify a shift toward a consistent approach rooted in foundational principles.

The victory was short-lived. Just weeks after the Court’s decision in McGirt, Justice Ruth Bader Ginsburg passed away, once again shifting the make-up of the United States Supreme Court. As a result, Federal Indian law once again finds itself at a crossroads. The Murphy and McGirt decisions are landmark decisions that bring change to the legal landscape of much of Oklahoma. It remains to be seen whether the perceived new Supreme Court era in Indian law is here to stay.

Highly recommended!!!