Indian affairs

Michalyn Steele: “Comparative Institutional Competency and Sovereignty in Indian Affairs”

Matthew L.M. Fletcher

Michaelyn Steele has posted her paper, “Comparative Institutional Competency and Sovereignty in Indian Affairs,” on SSRN.

Here is the abstract:

While vigorous debate surrounds the proper scope and ambit of inherent tribal authority, there remains a critical antecedent question: whether Congress or the courts are best situated ultimately to define the contours of inherent tribal authority. In February 2013, Congress enacted controversial tribal jurisdiction provisions as part of the Violence Against Women Act reauthorization recognizing and affirming inherent tribal authority to prosecute all persons, including non-Indian offenders, for crimes of domestic violence in Indian country. This assertion by Congress of its authority to set the bounds of tribal inherent authority — beyond where the Supreme Court has held tribal inherent authority to reach — underscores the importance of addressing the question of which branch ought to resolve the issue. This Article proposes a framework drawn from Supreme Court jurisprudence in the field of state sovereignty to argue that when sensitive issues of sovereignty are at stake, the comparative competence of the respective branches must be considered. Unlike any preceding work in this field, this Article proposes a model based on the indicia of institutional competence to suggest that Congress, rather than the courts, is the branch best suited to determine the scope of inherent tribal sovereignty.

New Scholarship on Plenary Power and Indian Affairs and Immigration

Matthew L.M. Fletcher

Susan Bibler Coutin, Justin B. Richland, and Veronique Fortin have posted Routine Exceptionality: The Plenary Power Doctrine, Immigrants, and the Indigenous Under U.S. Law on SSRN.

Here is the abstract:

Our paper examines how law-making regarding Native and Central Americans in the United States gives rise to documentary forms that challenge binaries that have plagued sociolegal scholarship. In the United States, plenary power gives the federal government what former U.S. attorney general Michael Mukasey termed the “administrative grace” to grant privileges to members of groups, such as immigrants and Native Americans, who are citizens of other nations, and thus whose allegiance is questioned. Matter of Compean 24 I&N Dec. 710 (A.G. 2009). Plenary power is understood by the Supreme Court as having “always been deemed a political one, not subject” to judicial oversight. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). This understanding makes plenary power something of a legal black box – analysis typically ends with the determination that the authority in question is a political one beyond legal review. Yet members of these groups experience plenary power precisely in its regulatory form, in the ways in which they are demanded to produce documents to establish juridical and political identities before the state. Such documents, which simultaneously produce and contest accounts of immigrant and indigenous histories, create alternative understandings in which law is characterized neither by gaps nor by gaplessness, but rather by embodiment in material form.