Stephanie Hall Barclay & Michalyn Steele have published “Rethinking Protections for Indigenous Sacred Sites” in the Harvard Law Review. Here is the abstract:
Meaningful access to sacred sites is among the most important principles to the religious exercise of Indigenous peoples, yet tribes have been repeatedly thwarted by the federal government in their efforts to vindicate this practice of their religion. The colonial, state, and federal governments of this Nation have been desecrating and destroying Native American sacred sites since before the Republic was formed. Unfortunately, the callous destruction of Indigenous sacred sites is not just a troubling relic of the past. Rather, the threat to sacred sites and cultural resources continues today in the form of spoliation from development, as well as in the significant barriers to meaningful access Indigenous peoples face.
Scholars concerned about government failure to protect Indigenous sacred sites on government property have generally agreed that the problem stems from the unique nature of Indigenous spiritual traditions as being too distinct from non-Indigenous religious traditions familiar to courts and legislators, and therefore eluding protection afforded to other traditions. By contrast, this Article approaches the problem from an entirely different angle: we focus instead on the similarities between government coercion with respect to Indigenous religious exercise and other non-Indigenous religious practices. We illustrate how the debate about sacred sites unwittingly partakes in longstanding philosophical debates about the nature of coercion itself — a phenomenon that has previously gone unnoticed by scholars. This Article argues that whether or not one formally labels the government’s actions as “coercive,” the important question is whether the government is bringing to bear its sovereign power in a way that inhibits the important ideal of religious voluntarism — the ability of individuals to voluntarily practice their religious exercise consistent with their own free self-development. Indeed, this is precisely the sort of question courts ask when evaluating government burdens on non-Indigenous religious exercise. The failure to ask this same question about voluntarism for Indigenous religious practices has created a double standard, wherein the law recognizes a much more expansive notion of coercion for contexts impacting non-Indigenous religious practices, and a much narrower conception of coercion when it comes to Indigenous sacred sites.
This egregious double standard in the law ought to be revisited. Doing so would have two important implications. First, when government interference with religious voluntarism is viewed clearly, tribal members and Indigenous practitioners should be able to prove a prima facie case under statutes like the Religious Freedom Restoration Act much more easily. Second, this Article makes the novel claim that clearer understanding of the coercive control government exercises over sacred sites should animate a strong obligation under the government’s trust responsibility and plenary power doctrine to provide more — rather than less — robust protection of Indigenous sacred sites.
Michalyn Steele has posted “Congressional Power and Sovereignty in Indian Affairs” on SSRN. The paper is forthcoming in the Utah Law Review.
Here is the abstract:
The doctrine of inherent tribal sovereignty — that tribes retain aboriginal sovereign governing power over people and territory — is under perpetual assault. Despite two centuries of precedential foundation, the doctrine must be defended afresh with each attack. Opponents of the doctrine of tribal sovereignty express skepticism of the doctrine, suggesting that tribal sovereignty is a nullity because it is not unfettered. Some pay lip service to the doctrine while undermining tribes in their exercise of inherent sovereignty. Underlying many of these legal fights is confusion about both the nature of tribal sovereignty and the justifications for its continuing existence. Under current federal law, tribes are domestic, rather than international sovereigns. Tribes retain significant powers but are subject to the ultimate sovereignty of the United States. The sui generis status of Indian tribes in the American legal landscape generates important and difficult questions: which governing powers do tribes retain and where does the power to answer that question reside in the federal system? How are disputes about the scope of tribal authority to be resolved?
As the debate about what powers tribes may exercise (and over whom) continues into its third century, it is critical to reexamine the origins of the doctrine of inherent tribal sovereignty as a settled principle of federal law and to articulate the principles that ought to guide the development of that principle in the future. Setting the metes and bounds of the doctrine of tribal sovereignty in federal law and policy belongs to the political branches. This Article suggests legal principles that ought to guide the federal political branches in the exercise of the Indian Affairs power and the trust responsibility to address the scope of tribal inherent authority. First, this Article examines the legal roots and branches of the doctrine of inherent tribal sovereignty, demonstrating that the doctrine remains a vital principle of federal law. Second, this Article analyzes the nature of contemporary assaults on the doctrine of inherent tribal authority by all three branches of the federal government, states, and private actors. Third, this Article suggests principles that ought to guide Congress in exercising its Indian affairs power to clarify and affirm the bounds of tribal sovereignty in federal law and in carrying out the federal trust responsibility to tribes.
Michaelyn Steele has published “Plenary Power, Political Questions, and Sovereignty in Indian Affairs” in the UCLA Law Review.
Here is the abstract:
A generation of Indian law scholars has roundly, and rightly, criticized the Supreme Court’s invocation of the political question and plenary power doctrines to deprive tribes of meaningful judicial review when Congress has acted to the tribes’ detriment. Courts have applied these doctrines in tandem so as to frequently leave tribes without meaningful judicial recourse against breaches of the federal trust responsibility or intrusions upon tribal interests and sovereignty. For example, courts consider congressional abrogation of a treaty a political question beyond the reach of the judiciary. At the same time, challenges to the inherent, or aboriginal, authority of tribes are deemed justiciable. The Court’s inconsistent approach represents a kind of “heads I win; tails you lose” application of the political question and plenary power doctrines in Indian affairs.
This Article proposes that, rather than facing a rigged coin toss in the courts, tribes should be able to avail themselves of the political question and plenary power doctrines to have Congress, rather than the courts, decide questions of inherent tribal authority. Under current precedent, the Court has aggrandized its own power in Indian affairs through the theory of implicit divestiture, which holds that the judiciary may find tribes divested of inherent powers even without congressional action. This Article argues that the questions of whether inherent tribal authority endures, and which sovereign powers tribes can exercise, should be political rather than judicial. This Article challenges long-held assumptions about these fundamental doctrines of federal Indian law and poses important questions about the role of the courts and Congress and about the future of inherent tribal sovereignty.
Michalyn Steele has posted “Plenary Power, Political Questions, and Sovereignty in Indian Affairs” on SSRN.
Here is the abstract:
A generation of Indian law scholars has roundly, and rightly, criticized the Supreme Court’s invocation of the political question doctrine to deprive tribes of meaningful judicial review when Congress has acted to the detriment of tribes. Similarly, many Indian law scholars view the plenary power doctrine — that Congress has expansive, virtually unlimited authority to regulate tribes — as a tool that fosters and formalizes the legal oppression of Indian people by an unchecked Federal government. The way courts have applied these doctrines in tandem has frequently left tribes without meaningful judicial recourse against breaches of the federal trust responsibility or intrusions upon tribal interests and sovereignty. Furthermore, there is a troubling inconsistency in the courts’ application of these doctrines to questions of inherent tribal sovereignty. For example, courts consider congressional abrogation of a treaty a kind of political question beyond the reach of the judiciary. At the same time, challenges to the inherent, or aboriginal, authority of tribes are deemed justiciable. The Court’s approach represents a kind of “heads I win; tails you lose” application of the political question and plenary power doctrines in Indian affairs.
This paper proposes that rather than facing a rigged coin toss in the courts, tribes should be able to avail themselves of the political question and plenary power doctrines to have Congress rather than the courts decide questions of inherent tribal authority. Under current precedent, the Court has aggrandized its own power in Indian affairs through the theory of implicit divestiture, which holds that the Court may find tribes divested of inherent powers even without Congressional action. This Article argues that whether inherent tribal authority endures and which sovereign powers tribes exercise are political rather than judicial questions given the current landscape of plenary power, political question, and implicit divestiture doctrines in Indian law. Under this reading of the Court’s Indian law precedent, unless the Supreme Court reexamines these fundamental assumptions, the Supreme Court should treat questions challenging inherent tribal authority in much the same way it treats questions raised by tribes challenging congressional exercise of the Indian affairs power: as political questions that do not present justiciable controversies. This argument builds upon the author’s earlier work assessing the comparative institutional competency of Congress and the courts with regard to questions of inherent tribal authority and proposes a fundamental shift in the conception of the plenary power doctrine and the political question doctrine’s application in federal Indian law. Scholars have traditionally rejected and critiqued both the plenary power and the political question doctrines in Indian affairs because they leave a discrete and insular minority vulnerable to political whims. The critique has generally envisioned the Court as a counter-majoritarian bastion standing between the tyranny of the majority and the tribes. However, in recent decades, the Court has been the instrument for eroding inherent tribal authority, primarily without the input of Congress. This paper challenges long-held assumptions about these fundamental doctrines of federal Indian law and poses important questions about the role of the courts and the Congress, and the future of inherent tribal sovereignty.
Michalyn Steele, a Seneca Nation member and soon to be one of only a handful of American Indian tribal member women to be a tenure system law professor (BYU), has published “Comparative Institutional Competency and Sovereignty in Indian Affairs” in the University of Colorado Law Review.
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 ultimately best situated 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 United States 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.