New Scholarship on Tribal Bankruptcy under Chapter 15 (“Foreign Nations”)

Blake Quackenbush has published “Cross-Border Insolvency and the Eligibility of Indian Tribes to Use Chapter 15 of the Bankruptcy Code” in the T.M. Cooley Law Review.

Here is the abstract:

Defaulting corporate debtors, sullied by unmanageable debt, often seek relief in federal bankruptcy court under 11 U.S.C. § 101, et seq. of the United States Code (Bankruptcy Code). Yet bankruptcy courts and scholars seem to agree that Indian tribes, like the Mashantucket Pequot Tribal Nation, cannot seek the same protection commonly afforded to individuals, entities, and municipalities under chapters 7 and 11 of the Bankruptcy Code.

Wenona Singel: “Indian Tribes and Human Rights Accountability”

Our own Wenona T. Singel has posted her paper, “Indian Tribes and Human Rights Accountability,” on SSRN. The San Diego Law Review recently published it.

Here is the abstract:

In Indian country, the expansion of self-governance, the growth of the gaming industry, and the increasing interdependence of Indian and non-Indian communities have intensified concern about the possible abuse of power by tribal governments. As tribes gain greater political and economic clout on the world stage, expectations have risen regarding the need for greater government accountability in Indian country. Despite these expectations, Indian tribes are largely immune from external accountability with respect to human rights. In fact, tribes have effectively slipped into a gap in the global system of human rights responsibility. The gap exists in the sense that tribal governments are not externally accountable in any broad sense for abuses of human rights that they commit. The failure of the legal system to provide for tribal accountability for human rights produces serious harms for Indian tribes and their polities. In this Article, I argue that the conventional understanding of tribal sovereignty must be reformed to reflect the transformative international law principle that all sovereigns are externally accountable for human rights violations. I then offer a proposal based on tribal accountability and respect for tribal sovereignty. I propose that tribes develop an intertribal human rights regime that includes the formation of an intertribal treaty recognizing tribal human rights obligations and establishing an intertribal institution with the capacity to enforce human rights violations. An intertribal human rights regime offers the best possible method for providing external accountability for tribal abuses of human rights. It allows tribes to address human rights violations without relying upon solutions supplied or imposed by the federal government. It also allows tribes to articulate and interpret universal human rights in light of their cultural, philosophical, spiritual, political, and social perspectives, and it allows them to develop effective and culturally appropriate institutional enforcement mechanisms.

You may recall that Michigan State Law Review hosted a symposium on Wenona’s paper. We will post those papers as soon as they’re published.

Fletcher & Vicaire: “Indian Wars: Old and New”

Matthew Fletcher and Peter Vicaire have posted “Indian Wars: Old and New” on SSRN (download here). This is a paper prepared for the Journal of Gender, Race, and Justice’s 15th Anniversary symposium, “War On … The Fallout of Declaring War on Social Issues.”

Here is the abstract:

This short paper analyzes American history from the modern “wars” on poverty, drugs, and terror from the perspective of American Indians and Indian tribes. These domestic “wars” are aptly named (it turns out), as the United States often blindly pursues broad policy goals without input from tribal interests, and without consideration to the impacts on Indians and tribes. With the possible exception of the “war on poverty,” these domestic wars sweep aside tribal rights, rights that are frequently in conflict with the overarching federal policy goals.

This essay explores three declared domestic wars, and their impacts on American Indian tribes and individual Indians, in loose chronological order, starting with the war on poverty. As Part 1 demonstrates, the Johnson Administration’s Great Society programs helped to bring American Indian policy out of the dark ages of the era of termination, in which Congress had declared that national policy would be to terminate the trust relationship. Part 2 describes the war on drugs, declared by the Reagan Administration, which had unusually stark impacts on reservation communities both in terms of law enforcement, but also on American Indian religious freedom. Part 3 examines the ongoing war on terror, which Bush Administration officials opined has its legal justification grounded in part on the Indian wars of the 19th century. The war on terror marks America’s return to fighting a new Indian war, where the adversary is illusive and motivated, and where the rule of law is literally obliterated.

Washington v. Cayenne — WA SCt Petition for Review — Treaty Rights

This is a criminal case in Washington state with possible implications for any tribe with preserved treaty hunting and fishings. The crime was committed by Cayenne (allegedly, I suppose) off the reservation, involving a violation of state fishing laws (i.e., gillnetting). The trial court issued an order upon conviction that the tribal member could not use gillnets even on the reservation because of this off-reservation crime. The Washington Court of Appeals reversed that aspect of the punishment.

Now the State is petitioning the State Supreme Court for review.The State AG filed an amicus in support of the petition. Some of the arguments made by the AG are troubling in the least.

Here are the materials:

Continue reading

The Myth of the Model IRA Constitution?

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?

“Tribal Extinction” Panel — This Friday

Tribal Extinction: Enrollment Issues in the 21st Century – featuring Marilyn Vann and Mike Phelan

The Native American Law Students Association and the Center for Diversity Services will welcome two speakers on Friday, November 9 to discuss perspectives of tribal enrollment, a controversial issue at the forefront of Indian Law and Constitutional Law. The event features guest speakers Marilyn Vann, recently disenrolled from the Cherokee Nation and lead plaintiff in the Cherokee Freedmen cases, and Mike Phelan, counsel for the Pokagon Band of Potawatomi Indians. The event begins at 6:30pm in the Castle Board Room on the 3rd floor of the MSU College of Law. Dinner will be served and all are welcome. Please contact Melissa Velky with any questions at velkymel@msu.edu.

 

Details about the Cherokee Freedmen (and others) are here.

 

All the documents filed in Vann v. Kempthorne are here.

Cherokee Freedmen Materials

H/T to Indianz.com:

Cherokee-Related Legislation:
H.R.2786 | H.R.2895 | H.R.2824 | H.R.3002

BIA Letters:
August 9, 2007 | July 11, 2007 | June 22, 2007 | May 21, 2007 | March 28, 2007 | August 30, 2006

Sovereign Immunity Court Decision:
Vann v. Kempthorne (December 19, 2006) Cherokee Nation Judicial Appeals Tribunal Decision in Freedmen Case:
Allen v. Cherokee Nation (March 7, 2006)

Relevant Links:
Cherokee Nation – http://www.cherokee.org
Freedmen Of The Five Civilized Tribes – http://www.freedmen5tribes.com
Freedmen Conference – http://www.freedmenconference.com
Congressional Black Caucus, Annual Leadership Conference – http://www.alc2007.com

MSU NALSA Panel: Cherokee Freedmen

On November 9, 2007, MSU’s Native American Law Students Association will be hosting a panel discussion on tribal membership issues in light of the Cherokee Freedmen controversy.

The speakers include Marilyn Vann, the lead plaintiff in Vann v. Kempthorne (D. D.C.), and Mike Phelan, in-house counsel for the Pokagon Band of Potawatomi Indians. Mike’s talk will be a more general discussion of the law of tribal membership.

Materials about the Cherokee Freedmen dispute are available on Indianz.com here. My own take on the question is here and here.

Real Property and Personhood by Kristen Carpenter (Denver)

Real Property and Peoplehood by Kristen Carpenter (Denver)

From the abstract:

This Article proposes a theory of “real property and peoplehood” in which lands essential to the identity and survival of collective groups are entitled to heightened legal protection. Although many Americans are sympathetic to American Indian tribes and their quest for cultural survival, we remain unable to confront the uncomfortable truth that the very thing Indian peoples need is their land, the same land that the U.S. took from them. This is especially the case with regard to the sacred sites of Indian peoples, whose religions and cultures are inextricably linked to those sites. Federal law permits the United States to destroy sacred sites essential to Indian ceremonial practices. The Supreme Court has held that destruction of sacred sites does not impinge on individual religious belief and falls within the government’s powers as an owner of the public lands. Although recent federal policy has evolved in favor of accommodating Indian sacred sites practices, land management agencies use their considerable discretion to permit competing uses of the public lands – such as natural resource development and tourism – that threaten the physical integrity of sacred sites. Such decisions devastate Indian people and undermine our shared expectation of free exercise rights for all Americans. Thus, federal law needs to prioritize Indian interests in sacred sites over competing uses of the public lands. Unfortunately, we don’t yet have a legal theory justifying such a position.

My theory of real property and peoplehood furthers the work of scholars who have recognized the relationship between human beings and property, albeit in other contexts. Most influentially, Professor Margaret Jane Radin has long argued for special legal protection of property that expresses an individual’s sense of self and therefore cannot be translated into a monetary value. But whereas Radin focuses on property that expresses individual personhood, I am interested in property that expresses collective “peoplehood”. As a descriptive matter, this concept of peoplehood reflects that, even in the United States where the individual rights paradigm dominates, individuals affiliate themselves along sub-national political, religious, ethnic, and cultural lines and their exercise of fundamental liberties occurs in those contexts. As a normative concept, John Rawls has argued that as a matter of “reasonable pluralism,” liberal states like the United States should recognize peoples and treat them fairly. To do otherwise is to fall short of our best democratic principles, such as the idea that all Americans are entitled to religious freedom. Working at the confluence of Radin and Rawls, the Article argues that Indian tribes are peoples whose legitimate interests in sacred sites deserve special legal protection as a testament to American liberty for both individuals and groups.