David Moore and Michalyn Steele on Revitalizing Indian Sovereignty in Treatymaking

David H. Moore and Michalyn Steele have published “Revitalizing Indian Sovereignty in Treatymaking” in the N.Y.U. Law Review.

Abstract:

In the current model of federal-Indian relations, the United States claims a plenary legislative power, as putative guardian, to regulate Indian tribes. Under this model, tribes are essentially wards in a state of pupilage. But the federal-tribal relationship was not always so. Originally, the federal government embraced, even promoted, a more robust model of tribal sovereignty in which federal-Indian treatymaking and diplomacy figured prominently. Through treaties, the United States and tribes negotiated territorial boundaries, forged alliances, facilitated trade, and otherwise managed their relations. In 1871, Congress attempted to put an end to federal-Indian treatymaking by purporting to strip tribes of their status as legitimate treaty partners. In a rider to the 1871 Appropriations Act, Congress prohibited the recognition of tribes as sovereign entities with whom the United States could negotiate treaties. Since that time, the 1871 Act and the plenary power-pupilage model it entrenched have grown deep roots in federal Indian law and the policies of the United States. Congress has aggrandized its role in tribal life at the expense of tribal sovereignty, and the coordinate branches of the federal government have acquiesced in this foundational shift.

The literature of federal Indian law has wrestled with the doctrine of plenary power, contemplated the fate of the federal-tribal treaty relationship, and questioned the constitutionality of the 1871 rider. This Article posits new arguments for the unconstitutionality of the 1871 Act, uprooting the presumptions underlying the Act and revitalizing the prospect of federal-Indian treatymaking. Two recent developments provide an opportunity for such a transformation. In Zivotofsky v. Kerry, the Supreme Court held that the President alone possesses the power to recognize foreign states and governments. While Zivotofsky was a landmark case for U.S. foreign relations law, its potential significance for federal Indian law has gone underappreciated. Zivotofsky did not directly address the locus of power to recognize tribal sovereignty to enter treaties, but it prompts the question and provides a blueprint for arriving at an answer. Engaging that blueprint, this Article argues that the President possesses the exclusive power to recognize tribes’ sovereign capacity to enter treaties. The result: The 1871 Act is unconstitutional because it attempts to limit that power. In our view, the President can and should unilaterally reengage in federal-Indian treatymaking, revitalizing treatymaking and reanimating the sovereignty model of federal-Indian relations.

A second development, the Supreme Court’s decision in McGirt v. Oklahoma, is less fundamental to the argument but also significant for revitalizing tribal sovereignty. In McGirt, the Court recognized the ongoing vitality of federal-Indian treaties that were entered when the sovereignty model prevailed, strengthening both claims to tribal sovereignty and the viability of treatymaking in the federal-Indian relationship.

The implications of these developments are significant. Deracinating the 1871 Act disrupts the dominance of the plenary power doctrine and pupilage model with their attendant abuses, more fully realizes the promise of the United States’ policy of Indian self-determination and commitment to international norms, and generates positive ripples for Indigenous-state relationships across the globe.

HIGHLY recommended.

End of Federal-Tribal Treatymaking & Great Chicago Fire of 1871 Coincidence or Correlation?

NYU Law Review Seeking Submissions from Indian Law Scholars

A message from the editorial board:

NYU Law Review is seeking submissions from Indian law scholars.

1. Print Articles.

As always, our Articles Department is seeking submissions covering diverse subject-matters, especially including general issues in Indian law that would be accessible to a generalist audience. Article submissions must have a minimum of 10,000 words and be submitted on Scholastica. In addition to submission on Scholastica, you may also forward any submission directly to our Senior Articles Editor, Simon Williams, at sjw446@nyu.edu. The Department is accepting unsolicited articles through the end of March, 2016.

2. Online Essays and Comments.

Our Online Department is similarly interested in submissions in Indian law. The Online Department is focused on publishing content addressing timely legal issues, such as current controversies and debates. Online submissions have a maximum word limit of 10,000 words and may be submitted directly to our Senior Online Editor, Marcelo Triana, at mt3497@nyu.edu or via Scholastica. More information on our submission policy can be found on our website, www.nyulawreview.org.

NYU Law Review Seeking Submissions from Indian Law Scholars

A message from NYU Law Review editor Raymond Fadel…

NYU Law Review is seeking submissions from Indian law scholars.

  1. Online Series on Dollar General.

Our Online Department has voted to publish an online feature series spotlighting the Dollar General case, and its legal and policy implications. Amongst other things, we are currently looking for pieces that discuss the case itself, its legal background and importance, and its implications for Indian and non-Indian country alike—particularly Indigenous women’s issues and its insights into women’s issues in general.

To facilitate timely debate, we plan on publishing the spotlight series shortly after the Dollar General case is decided. We encourage you to submit your Essays and Comments within two weeks after the Supreme Court’s decision, but of course, you are welcome to send your pieces for consideration as soon as you have them.

Online submissions have a maximum word limit of 10,000 words and may be submitted directly to our Senior Online Editor, Agne Jomantaite, at aj785@nyu.edu or via Scholastica. More information on our submission policy can be found on our website, www.nyulawreview.org.

  1. Print Articles.

As always, our Articles Department is seeking submissions covering diverse subject-matters, especially including general issues in Indian law that would be accessible to a generalist audience. Article submissions must have a minimum of 10,000 words and be submitted on Scholastica. In addition to submission on Scholastica, you may also forward any submission directly to our Senior Articles Editor, Tyler Domino, at tjd266@nyu.edu. The Department is accepting unsolicited articles through the end of March, 2016.