federal indian law

MSU American Indian Law & Lit Speaker Profile: Kirsten Matoy Carlson

Matthew L.M. Fletcher

In the coming weeks, we will be profiling the work of the speakers scheduled to present at the 4th Annual Indigenous Law Conference, “American Indian Law and Literature.”

The first profiled speaker, Kirsten Matoy Carlson, will be presenting a paper called, “Unresolved Disputes:Narratives in the Transformation and Processing of Persistent Claims.”

Kirsten’s abstract (from SSRN):

In 1980, the Supreme Court decided the largest land claim ever lodged against the United States government in favor of the Lakota people. The decision should have ended Lakota claims to the Black Hills, but it did not. This law review article seeks to understand why these claims persist despite their formal adjudication. It brings two traditions of legal scholarship together for the first time by considering the role of narrative in the sociolegal processes of dispute creation and re-creation. It argues that grievances persist through narratives, which facilitate the naming, blaming, and claiming stages of dispute creation. These narratives present a separate historical and legal perspective, and argue for the righting of historical injustices. As these narratives are repeated, the dispute is created and re-created intergenerationally, often evolving along the way. The article concludes that these narratives, which diverge from traditional legal narratives about the claims, explain the persistence of the unresolved dispute.

A Judicial Framework for Applying Supreme Court Jurisprudence to the State Income Taxation of Indian Traders by Scott Taylor (St. Thomas)

Matthew L.M. Fletcher

Scott Taylor: A Judicial Framework for Applying Supreme Court Jurisprudence to the State Income Taxation of Indian Trader

From the abstract:

State income taxation of Indian traders is a legal issue that the United States Supreme Court is likely to address within the next five years. This article provides a theoretical framework for resolution of the issue by considering the political framework of the United States Constitution and the historical role that federally recognized Indian tribes have played within the American legal system. As the cases work their way through the state judicial systems, this article will provide an important theoretical starting point for the lawyers and judges dealing with the question. And when the United States Supreme Court finally addresses the issue, the Court will be able to consider the usefulness of my framework.

Virtually everyone who sells goods and services to one of the more than 560 federally recognized Indian tribes (or to their on-reservation members) is an Indian trader. Most Indian traders are in states that have an income tax. Although the United States Supreme Court has held that these sales are exempt from states sales taxes, no federal case has yet answered the income tax question. Tribes are interested in the issue because the outcome will affect their ability to tax Indian traders. States are interested because it will affect their tax revenue. Indian traders are interested because it will affect the state income taxes they pay.

The theoretical framework that I propose builds on some of the Supreme Court jurisprudence on federal Indian law. My framework looks at the structure of Congress, the inclusion of states, and the exclusion of tribes. Given Congress’ power over Indian affairs, the Supreme Court should decide cases in favor of the tribal interest whenever Congress has spoken with less than clarity. If states do not like the judicial answer, they can go to Congress and seek a legislative remedy, as they did with the Indian Gaming Regulatory Act in the 1980s.

Congress has regulated Indian traders for over 200 years but has never stated whether states can tax them. Given the presence of this federal regulation, the United States Supreme Court in the 1960s decided that states could not impose their sales taxes on Indian traders. In a line of subsequent Supreme Court cases, the federal preemption logic has remained largely unchanged. This same logic, when viewed in light of Congress’ role in Indian affairs and the political exclusion of tribes from Congress, leads to the conclusion that Indian traders should be exempt from state income taxes.

Congressional Research Service Reports

Matthew L.M. Fletcher1 Comment

If anyone out there wants to find out what “secret” reports Members of Congress and their staffers read when confronted with an Indian law question, check out some of these CRS reports, now starting to appear online.

Indian Reserved Water Rights: An Overview (2005)

United States v. Lara (2003)

IGRA: Gaming on Newly Acquired Lands (2006)

Wagnon v. Prairie Band Potawatomi Nation (2005)

Cobell (2005)

Contract Support Costs: Cherokee Nation v. Leavitt (2005)

NAGPRA (2005)

Adam Walsh Act (2007)

Native Hawaiian Recognition (2005)

There are more reports at http://www.opencrs.com/

Supreme Court & Indian Law

Matthew L.M. Fletcher

The Supreme Court issued its first order of the October 2007 Term last week — containing no Indian law grants, as I blogged elsewhere.

Today, the Court issued an order listing cert. denials, including Catawba Indian Tribe v. South Carolina (No. 07-69), Gros Ventre Tribe v. United States (06-1672), and Yakama v. Colville (No. 06-1588).

So what does this mean? By itself, I suppose it means nothing. But the Catawba and Gros Ventre cases were cases in which the tribal interests were petitioning (and the other case was an intertribal conflict) against a state and the federal government, respectively. A Court hostile to tribal interests would leave those cases alone.

With this round of cert. denials, keep in mind that the last time the S. Ct. granted cert. in an Indian law case was Wagnon v. Prairie Band Potawatomi Nation — and two “Westerners,” Rehnquist, C.J. and O’Connor, J., were still Members of the Court. Since then, the Court has denied cert. in something like 60 straight Indian law cases.

For background on my theory about how it matters that “Westerners” used to sit on the Supreme Court in the context of cert. petitions, see my editorial in Indian Country Today.

Of course, the editorial has an incorrect statement (my own fault) — for a few years in the early 1990s, there were four Westerners on the Court — Rehnquist, O’Connor, White, Kennedy.