Neoshia Roemer on the Conflict between ICWA and the Interstate Compact on the Placement of Children

MSU ILPC’s own Neoshia R. Roemer has published Finding Harmony or Swimming in the Void: The Unavoidable Conflict Between the Interstate Compact on the Placement of Children and the Indian Child Welfare Act. [PDF]

Here is the abstract:

The Indian Child Welfare Act is a federal statute that applies to Indian children who are at the center of child welfare proceedings. While the Indian Child Welfare Act provides numerous protections to Indian children, parents, and tribes, many of these cases play out in state courts which are also required to apply their own requisite, relevant state laws. However, sometimes friction between the Indian Child Welfare Act and state-law provisions arise where state law provisions may seem in accord with the statute but  actually contradict it, such as in the case of the Interstate Compact on the Placement of Children. This Article surveys the Interstate Compact on the Placement of Children’s  provisions and discusses the friction that exists between it and the Indian Child Welfare Act. Ultimately, this Article argues that because the Interstate Compact on the Placement of Children is a state administrative procedure that may alter that status of child welfare  proceedings, the Indian Child Welfare Act should preempt the Compact where it is  applicable.

New Indian Law Scholarship in the North Dakota Law Review


91 N.D. L. Rev. 1
Avoiding Extinction, Preserving Culture: Sustainable, Sovereignty-Centered Tribal Citizenship Requirements
– Michael D. Oeser

91 N.D. L. Rev. 37
Consultation or Consent: The United States’ Duty to Confer With American Indian Governments
– Robert J. Miller

Bob Miller on the United States Duty to Confer with American Indian Governments

Robert Miller has posted his paper, “Consultation or Consent: The United States Duty to Confer with American Indian Governments,” forthcoming in the North Dakota Law Review. Here is the abstract:

This article explores the current international law movement to require nation/states to consult with Indigenous peoples before undertaking actions that impact Indigenous nations and communities. The United Nations took a significant step in this area of law in September 2007 when the General Assembly adopted the Declaration on the Rights of Indigenous Peoples. The Declaration contains many provisions requiring states to confer and consult with Indigenous peoples, and in many instances to obtain their “free, prior and informed consent.” This article undertakes an original and detailed investigation into how the free, prior and informed consent standard emerged in the drafting of the Declaration.

But the article also points out that consultations and obtaining the consent of Indigenous peoples is nothing new in the political and diplomatic relations between American Indian nations and the United States. From the very founding of the U.S., it has maintained a government-to-government relationship with Indian tribes. This relationship is expressly recognized in the U.S. Constitution, and is reflected in hundreds of U.S./Indian treaties and in the history of the interactions between these governments. A nearly constant stream of formal and informal consultations and diplomatic dealings has marked this relationship.

In recent decades, though, the international community has begun focusing on consultations with Indigenous peoples and has increased the international law obligation on states to consult. The international regime is also moving far beyond mere consultations and is requiring states to obtain the free, prior and informed consent of Indigenous peoples. On the surface, requiring the United States to obtain the informed consent of Indian nations and peoples, before undertaking actions that affect them, might be more onerous than just consulting with tribal governments.

This article examines the history and modern-day processes for United States consultations with Indian nations and the emerging international law standard of free, prior and informed consent. The article argues that the United States should continue and even enhance the consent paradigm that has always been the goal of federal/tribal relations. And, the article also argues that the United States should have little trouble adapting to the new international law consent movement.


New Volume of North Dakota Law Review Features Three Indian Law Papers


90 N.D. L. Rev. 13
A Possible Solution to the Problem of Diminishing Tribal Sovereignty
– Hope Babcock 


The capacity of Indian tribal sovereignty to protect tribes from outside encroachment and interference has steadily diminished from when the concept was first enunciated in the nineteenth century in the Marshall Indian Law Trilogy. This article assumes as a working premise that only bringing tribes into the Constitution as co-equal sovereigns will end the attrition. The article examines how this might happen, either through creative interpretation of existing constitutional text or by amending the Constitution. Each of these proposals is examined to see if it empowers tribes to manage their futures more effectively, is capacious enough to include the vast majority of tribes, maintains the union’s security and stability, and has political salience. The article concludes that only the creation of a virtual nationwide election district for all members of a tribe to elect tribal representatives to Congress will meet these criteria. The author concedes that the approach is novel, but hopes it is sufficiently viable to warrant further consideration by others.

90 N.D. L. Rev. 121
In Defense of Tribal Sovereign Immunity: A Pragmatic Look at the Doctrine as a Tool for Strengthening Tribal Courts
– Ryan Seelau


Although the doctrine of tribal sovereign immunity was recently upheld by the Supreme Court in Michigan v. Bay Mills Indian Community,1 its existence continues to be attacked as “antiquated” and leading to “unfair” results. While most defenses of tribal sovereign immunity focus on how the doctrine is a necessary part of sovereignty or how the doctrine is necessary for financial reasons, the more pragmatic benefits of tribal sovereign immunity have remained largely overlooked. Any desire to take tribal self-determination seriously and to allow Native nations to produce their own robust and capable governing systems means re-examining the role tribal sovereign immunity plays in such efforts. This article conducts such a re-examination. First, it takes note of the extensive research indicating that strong tribal courts are generally necessary for healthy and resilient Native nations. Second, it looks at the six components that comprise strong tribal courts: (1) accountability; (2) capacity; (3) funding; (4) independence; (5) jurisdiction; and (6) legitimacy. Finally, it argues that the strategic use of tribal sovereign immunity has positive effects on all six components of strong tribal court systems. In essence, tribal sovereign immunity is a valuable tool that Native nations can use to strengthen their own courts, institutions, and nations themselves.

90 N.D. L. Rev. 191
Native Americans – Sovereign Immunity: Determining Whether the Indian Gaming Regulatory Act Abrogates Tribal Sovereign Immunity for Lawsuits Arising Outside of Indian Country
Michigan v. Bay Mills Indian Cmty, 134 S.Ct. 2024

– Mitchell G. Enright 


In Michigan v. Bay Mills Indian Community, the United States Supreme Court held that the Indian Gaming Regulatory Act (“IGRA”) did not implicitly or explicitly abrogate the common law doctrine of tribal sovereign immunity so as to allow a state to file a federal suit against an Indian tribe for illegal gambling activity taking place outside of Indian country. The Court reasoned that neither the text nor the legislative history of IGRA indicated a desire on the part of Congress to abrogate tribal immunity to allow for such suits; the fact that IGRA specifically addresses activities occurring inside of Indian country was dispositive to the Court that Congress chose to leave traditional state-law remedies in place when illegal gaming activity occurs outside of Indian country. The Court was also unwilling to overrule its previous decision of Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., which expanded the doctrine of tribal sovereign immunity to cover suits arising from contracting disputes with non-Indian businesses off-reservation. The Court’s holding in Bay Mills clarifies the doctrine of tribal sovereign immunity within the controversial context of Indian gaming. However, this will not result in any expansion of Indian gaming beyond Indian country. On the contrary, the Court’s decision makes clear that states will continue to have a number of remedies available to them to prevent Indian gaming off-reservation, just not the sort of federal suit at issue in this case.

B.J. Jones & Christopher Ironroad on Sentencing Disparities for Dakota Citizens


89 N.D. L. Rev. 53
Addressing Sentencing Disparities for Tribal Citizens in the Dakotas: A Tribal Sovereignty Approach
BJ Jones & Christopher J. Ironroad

The abstract:

Native Americans in the Dakotas can receive criminal sentences in federal courts that are harsher than sentences meted out for similar conduct in state courts. The reason for this is the historical role the federal government has played in determining justice issues in tribal communities. Although the federal government oftentimes sought tribal input into justice issues in tribal communities, that input has not been sought in the area of sentencing of natives for offenses in federal courts, with some limited exceptions (death penalty and career offender sentencing). This Article argues a need to change this practice and that Indian tribes, through an opt-in provision similar to other tribal opt-in provisions in the criminal justice arena, should have a right to dictate more equitable sentencing for their members when the sentencing disparity is stark and exists only because federal jurisdiction lies. Such a remedy to disparate sentencing would not impact the prosecution of crime in tribal communities, but instead would ensure that native persons do not receive more punitive sentences merely because of their status as American Indians. Because of the unique trust relationship between the United States and American Indian tribes, the United States has a legal and moral imperative to address this issue, similar in regards to the disparity in federal sentences for crack versus powder cocaine offenses, which had a disproportionate impact upon African-Americans. In particular, this Article examines the sentencing of a young native woman on the Fort Berthold reservation who was prosecuted for the death of an infant child and sentenced in accordance with federal guidelines that appear to be far out of proportion to similar sentences in state courts. This Article suggests that a remedy for prior sentences be considered by Congress in light of the hesitancy of the executive branch to utilize its clemency powers to correct Native American sentencing injustices.

Gregory Gagnon on Chthonic Law in American Indian Law


89 N.D. L. Rev. 29
American Indian Law: A Discourse on Chthonic Law
Gregory Gagnon

The abstract:

This discourse on Chthonic Law, a theory propounded by H. Patrick Glenn among others, is the occasion for describing advantages and disadvantages of the introduction of customary American Indian law (Chthonic law) into the courtroom. Remarks on the theory, considerations of its merits and weaknesses and illustrations from American Indian societies lead to the conclusion that Chthonic law should become part of the admissible evidence in American courts. A major criticism of Chthonic Law theory is that it tends to describe a fictionalized version of society. Examples of American Indian violence, use of punishment, and private property law counter the idyllic construction of Chthonic law. Examples of the actual operation of a different legal system do exist, particularly the use of compensation and the justice goal of restoration after offenses. Chthonic law theory, if modified can be of use to American Indian plaintiffs.

North Dakota Law Review Article on Missouri River Basin Compact

Jeffrey T. Matson has published “Interstate Water Compact Version 3.0: Missouri River Basin Compact Drafters Should Consider an Inter-Sovereign Approach to Accommodate Federal and Tribal Interests in Water Resources” in the North Dakota Law Review.

The abstract:

In the aftermath of the historic 2011 Missouri River flood, Missouri River Basin (MRB) state representatives and governors criticize the U.S. Army Corps of Engineers (Corps) for operating the Missouri River Mainstem Reservoir System (System) in support of the multiple, often conflicting, purposes outlined in the Flood Control Act of 1944. These officials envision entering into an interstate compact to divest the Corps of some of its operational authority and to broaden their role in managing water resources. Similarly, MRB tribal leaders argue that the Corps fails to operate its System in a manner that respects the interrelated issues of Indian reserved water rights and tribal sovereignty. As States and Tribes contemplate a rebalancing of power in the MRB, it is essential that any water resources management solution provide a forum in which affected States, Tribes, and the Federal government might work together in pursuit of interconnected interests. Accordingly, it is time for stakeholders to think beyond the dualistic “federal-interstate” compact arrangement and seriously consider a pluralistic “federal-interstate-tribal” approach – even if Indian reserved water rights are not yet quantified. Although such a tripartite approach is a departure from traditional compacting practice, the great weight of Indian reserved water rights warrants tribal representation on any commission charged with implementing a twenty-first century MRB water resources compact. Further, it would be unrealistic to expect a federal commissioner to represent tribal interests until such time as rights are quantified, given the Federal government’s conflict of interest in operating the System for other consumptive users. This Article concludes that the Federal government’s interests in flood protection, navigation, and national security, and the Tribes’ interests in protecting reserved water rights and tribal sovereignty, warrant an inter-sovereign approach whereby power is shared equally among signatories to this compact.

Ray Cross on Fracking and the Fort Berthold Reservation

Probably the most important article on fracking in Indian country so far.

Raymond Cross has published “Development’s Victim or Its Beneficiary?: The Impact of Oil and Gas Development on the Fort Berthold Indian Reservation” in the North Dakota Law Review.