Paul Spruhan, a clerk for the Navajo Nation Supreme Court, has posted “Indian as Race/Indian as Political Status: Implementation of the Half-Blood Requirement under the Indian Reorganization Act, 1934-1945” on SSRN. This paper was published in the Rutgers Race and the Law Review.
Here’s the abstract:
In 2006, several Alaskan Native communities sued the Department of the Interior for failing to take land into trust on their behalf under 25 U.S.C. 465 and 25 CFR Part 151. Not much has happened in the case (other than a motion to transfer venue to D. Alaska), but recently the State of Alaska moved to intervene.
Here is the amended complaint and other materials:
I’ve always taught my federal Indian law students that many — if not most — of the tribal constitutions adopted in the years immediately following the Indian Reorganization Act were imposed on the tribes by the Bureau of Indian Affairs. These were the model IRA constitutions. If you look at the constitutions adopted around that time, you see a lot of similar features: lack of separation of powers, no tribal courts, Secretarial approvals for everything up to and including breathing. But as Blake said, he who generalizes is a fool.
Recent works of scholarship challenge that notion that the Bureau imposed model constitutions. First, Elmer Rusco’s chapter in American Indian Constitutional Reform and the Rebuilding of Native Nations. And now David Wilkins’s introduction to the new book, Felix S. Cohen’s On the Drafting of Tribal Constitutions. Elmer Rusco’s 2000 book on the IRA, A Fateful Time, argues that the BIA considered thrusting model constitutions at tribes, but rejected the plan in favor of an outline. Wilkins notes that it appears some tribes did receive a model constitution from the BIA (the one reproduced as Appendix A in the Cohen book), and others received a model corporate charter or the outline.
It would be worthwhile to do a survey of the 181 tribes that voted to accept the IRA. What do their constitutions say?
By David E. Wilkins, Felix S. Cohen, Lindsay G. Robertson
A newly discovered document sheds light on Indian self-governance Felix Cohen (1907–1953) was a leading architect of the Indian New Deal and steadfast champion of American Indian rights. Appointed to the Department of the Interior in 1933, he helped draft the Indian Reorganization Act (1934) and chaired a committee charged with assisting tribes in organizing their governments. His “Basic Memorandum on Drafting of Tribal Constitutions,” submitted in November 1934, provided practical guidelines for that effort.
Largely forgotten until Cohen’s papers were released more than half a century later, the memorandum now receives the attention it has long deserved. David E. Wilkins presents the entire work, edited and introduced with an essay that describes its origins and places it in historical context. Cohen recommended that each tribe consider preserving ancient traditions that offered wisdom to those drafting constitutions. Strongly opposed to “sending out canned constitutions from Washington,” he offered ideas for incorporating Indigenous political, social, and cultural knowledge and structure into new tribal constitutions.
On the Drafting of Tribal Constitutions shows that concepts of Indigenous autonomy and self-governance have been vital to Native nations throughout history. As today’s tribal governments undertake reform, Cohen’s memorandum again offers a wealth of insight on how best to amend previous constitutions. It also helps scholars better understand the historic policy shift brought about by the Indian Reorganization Act.
David E. Wilkins is Professor of American Indian Studies and Adjunct Professor of Political Science, Law, and American Studies at the University of Minnesota, Twin Cities, and coauthor of Uneven Ground: American Indian Sovereignty and Federal Law. Lindsay G. Robertson, Professor of Law at the University of Oklahoma, is the author of Conquest by Law: How the Discovery of America Dispossessed Indigenous People of Their Lands.
One of the newest and interesting topics facing gaming tribes, including the Saginaw Chippewa Indian Tribe, see here, and the Mashantucket Pequot Nation, see here, is the question of whether the employees of tribal casinos can organize labor unions. Many tribal casino employees in California have already organized — most of the California gaming compacts require it.
But in Michigan and most elsewhere, most Indian tribes haven’t agreed to allow employees to organize. The major legal and policy question is whether federal law, embodied in the National Labor Relations Act (the Act or NLRA) applies to Indian tribes.
The Act doesn’t say whether or not it applies to Indian tribes — it’s silent. Congress enacted this law in 1935 during a time of enormous legal, political, and often violent conflict between large corporate employers and their workers. The statute itself speaks of “industrial strife and unrest.” 29 U.S.C. § 151. Wenona Singel argued persuasively in her article, “Labor Relations and Tribal Self-Governance,” that Congress in 1935 did not consider Indian tribes to have the potential to become major economic players — and therefore would not have considered the Act to apply to tribal businesses. In fact, as Prof. Singel argued, a year earlier in 1934, Congress enacted the largest and most important piece of positive Indian affairs legislation — the Indian Reorganization Act (IRA) — so it was clear they knew about Indian tribes. Section 17 of the IRA even authorized Indian tribes to charter federal corporations for business purposes. The fact that the NLRA never even mentioned Indian tribes in this historical context is a powerful clue that Congress would not have thought the Act would apply to tribal businesses.
And for decades, the federal agency charged with implementing the NLRA — the National Labor Relations Board — interpreted the Act just as Congress would have. In the 1970s, for example, the Board held that the Act does not apply to tribal businesses. Congress had decades to amend the NLRA to make it apply to tribal businesses, but it chose not to. Regardless, in 2005, the Board reversed almost 30 years of its own precedent and held that the Act did apply. The D.C. Circuit, required by federal constitutional law to defer to the expertise of federal agencies (so-called Chevron deference), upheld this decision.
Now national labor unions are beginning to seek to organize tribal gaming employees. Some tribes have adopted a right to work ordinance, see the Grand Traverse Band Code, Title 5, Chapter 8, and the Mashantucket Pequot Tribal Laws Title 28 [thanks to Trent Crable] — as most states have — that limits labor unions rights. Others are fighting the decision.
Turtle Talk 