indian tribe

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.

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.