“Muskrat Textualism” Now Published in the Northwestern U. Law Review


The asbtract:

The Supreme Court decision McGirt v. Oklahoma, confirming the boundaries of the Creek Reservation in Oklahoma, was a truly rare case in which the Court turned back arguments by federal and state governments in favor of American Indian and tribal interests. For more than a century, Oklahomans had assumed that the reservation had been terminated and acted accordingly. But only Congress can terminate an Indian reservation, and it simply had never done so in the case of the Creek Reservation. Both the majority and dissenting opinions attempted to claim the mantle of textualism, but their respective analyses led to polar opposite outcomes.

Until McGirt, a “faint-hearted” form of textualism had dominated the Court’s federal Indian law jurisprudence. This methodology enables the Court to seek outcomes consistent with the Justices’ views on how Indian law “ought to be.” This Article labels this thinking Canary Textualism, named after the dominant metaphor used for decades to describe Indian law, the miner’s canary—a caged bird used to warn of toxic gases in a mine. Canary textualists treat Indians and tribes as powerless and passive subjects of federal law and policy dictated by Congress and the Supreme Court. Canary Textualism relies on confusion in the doctrinal landscape and fear of tribal powers to justify departures from settled law. The 1978 decision Oliphant v. Suquamish Indian Tribe, in which the Supreme Court stripped Indian tribes of critical law enforcement powers by judicial fiat, is the prototypical Canary Textualism case. Oliphant’s hallmark is the Court’s legal acknowledgment that Indian tribes are dependent on the federal government in light of centuries of precedents that presumed the racial inferiority of Indian people. This allowed the Court to quietly assume that tribal governments are inferior as well.

Scholars long have decried the Court’s Canary Textualism but have rarely offered a better theory. This Article attempts to fill that gap and to provide more certainty in federal Indian law textualist doctrine that will help preclude Canary textualist activism. A far better metaphor than the miner’s canary is that of the muskrat—the hero of the Anishinaabe origin story of the great flood, a lowly, humble animal that nevertheless took courageous and thoughtful action to save creation. Indians and tribes are no longer caged birds. Tribal governments are active participants in reservation governance. They are innovative and forward-thinking. Luckily, the McGirt decision exemplifies a new form of textualism, Muskrat Textualism, that acknowledges and respects tribal actions and advancement. Muskrat textualists accept tribal governments as full partners in the American polity. Muskrat textualists accept the relevant interpretative rules that govern federal Indian law where texts are ambiguous and where texts are absent or not controlling. As a result, Muskrat Textualism is also a superior form of textualism more generally, illustrating the proper role of the judiciary in constitutional law and statutory interpretation and ensuring more predictable and just Indian law adjudication.

This Article argues that McGirt—and its embrace of Muskrat Textualism—is a sea change in federal Indian law, and rightfully so. If that is the case, then cases like Oliphant should be reconsidered and tossed into the dustbin of history.

Native America Calling Program on Oliphant — Thursday, March 4, 2021

Here: “Oliphant: four decades of hampered tribal jurisdiction.”

The blurb:

A U.S. Supreme Court decision in March, 1978 continues to hinder tribal sovereignty on a daily basis. The ruling in Oliphant v. Suquamish Indian Tribe stripped tribes of most criminal prosecutions against non-Indians. Those cases became the responsibility of the federal government. In his dissent, Justice Thurgood Marshall wrote “I am of the view that Indian tribes enjoy, as a necessary aspect of their retained sovereignty, the right to try and punish all persons who commit offenses against tribal law within the reservation.” The Violence Against Women Act was an attempt to remedy the persistent trend of non-Native abusers of Native women slipping through the cracks of the federal justice system. We’ll look at the distressing consequences of Oliphant and efforts through the years to fix it.

FTCA/Civil Rights Suit against BIA Officers Enforcing N. Cheyenne Tribal Bench Warrant against Non-Indian Dismissed

Here are the materials in the case captioned In re Roberts Litigation (D. Mont.):

33 Federal Motion for Summary J

44 Opposition

45 Federal Reply

54 DCT Order Granting Federal Motion for Summary J

An excerpt:

In order for Roberts’ claim under Bivens to survive, the law must have been sufficiently clear to place a reasonable officer on notice that the Tribal Court acted in complete absence of jurisdiction in issuing the warrants, and that in carrying out the Tribal Court mandate to serve the warrants, reasonable officers would have known they were [8]  engaging in an unlawful act, Existing law permits no such conclusions, notwithstanding Roberts’ contention that the law was clearly established that the Tribal Court lacked criminal jurisdiction over non-Indians under the authority of Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S. Ct. 1011, 55 L. Ed. 2d 209 (1978) and that the officers had personal knowledge that Roberts was a non-Indian.

Roberts’ argument fails to take into account the Northern Cheyenne Tribal Court’s claim of capacity to exercise jurisdiction over non-Indians by consent. It is not necessary, however, for this Court to decide the question of whether a tribal court may exercise such jurisdiction. Rather, the issue is whether the law was so clearly established at the time of Roberts’ arrests that a reasonable officer would have known that the tribal court was wholly without jurisdiction and that he was engaging in a null and void act. Existing law is not sufficiently clear to warrant that conclusion. The jurisdictional issue remains.

The officers were presented with facially valid warrants, they were charged with the responsibility to execute the warrants, and they had a reasonable basis to believe in the validity of the warrants and in the lawfulness of their actions in executing the warrants. They are entitled to qualified immunity for the personal capacity claims brought against them under the Bivens doctrine.

Blast from the Past: “The Supreme Court Decision that Jolted Tribal Jurisdiction” (1989)

Current Utah law prof Alex Skibine and Melanie Beth Olivero published a scathing critique of the Supreme Court’s decision in Oliphant v. Suquamish Indian Tribe in the American Indian Journal:

American Indian Journal article

Of particular note is the prediction that non-Indian crime would go unpunished.

David Perez on Why GOP is Wrong on Constitutionality of Tribal Court Provisions in VAWA Reauthorization

Here. An excerpt:

First, let’s be clear: Senator Grassley’s bold assertion that Native Americans cannot serve as impartial jurors is simply racist. The Sixth Amendment’s right to jury grants you the right to have a jury selected from the community in which the crime took place.  If a Native American committed an act of violence in Senator Grassley’s own Butler County, Iowa, chances are he’d face an all-White jury. That’s because Butler County is 98.95 percent White, and only 0.05 percent Native American. But I doubt Senator Grassley thinks that a Native American defendant couldn’t get a fair shake from his hometown Hawkeyes.  And there’s no reason to think that Native American jurors would act differently.

The other purportedly constitutional objection to the tribal protection provision stems from a 1978 Supreme Court case that originated right here in Washington state: Oliphant v. Suquamish Indian Tribe.  Suquamish tribal authorities arrested two men, Mark Oliphant and Daniel Belgarde, for crimes committed on Suquamish tribal lands. The defendants argued that the tribe could not charge them with any crime, no matter where it was committed, because they weren’t Indians. The Supreme Court agreed, but its reasoning is what’s most important: the Court never held that it was unconstitutional for tribal authorities to charge and try non-Indians, but rather that Congress’s “various actions and inactions in regulating criminal jurisdiction on Indian reservations demonstrated an intent to reserve jurisdiction over non-Indians for the federal courts.” Put differently, Congress just had to change its mind.

In a similar case about ten years later, Duro v. Reina, the Supreme Court determined that under existing federal law one tribe could not exercise criminal jurisdiction over an enrolled member of another tribe. So what happened? Congress simply changed its mind—and the law—to allow tribes to prosecute members of other tribes, explicitly overruling the Duro decision. Most recently, in 2004, the Supreme Court echoed this point by concluding, in United States v. Lara, that Congress has the power to “lift or relax” restrictions on tribal jurisdiction over criminal matters.

That’s what Congress is trying to do with these new VAWA provisions.  It’s not a constitutional hurdle—it’s a legislative one.  And the Senate just voted to remove that hurdle.

Paul Spruhan on Non-Indian Consent to Tribal Criminal Jurisdiction

Paul Spruhan has posted his draft paper, ‘Indians, in a Jurisdictional Sense’: The Continuing Viability of Consent as a Theory of Tribal Criminal Jurisdiction Over Non-Indians, on SSRN. We have accepted this paper for our new collection of essays to be edited by Fletcher, Fort, and Singel arising out of last fall’s MSU Indigenous Law and Policy Center annual conference, Beyond the Tribal Law and Order Act.

Here is Paul’s abstract:

The paper, written as a chapter for a proposed collaborative book on the Tribal Law and Order Act, discusses the theory of consent as a means of asserting tribal criminal jurisdiction over non-Indians. It discusses the legal history of naturalization and adoption of non-Indians as citizens of tribal nations as one form of consent. It then discusses the historical and contemporary influence of the Department of the Interior on tribal membership provisions adopted under the Indian Reorganization Act and other laws, and the shift from naturalization to rules restricting membership to citizens with tribal or Indian blood. It further discusses different modern theories of consent, adopted by the Navajo Nation and other tribes, based both on tribal traditional law and the Indian Civil Rights Act, and their relative chances of surviving federal scrutiny. It concludes with the proposal that non-Indians themselves consent to tribal criminal jurisdiction as a form of resistance to the ongoing reduction of tribal authority by the federal courts.

More on Consent to Tribal Criminal Jurisdiction

We should add that at least one legal commentator and at least one other tribal court has previously discussed non-Indian consent to tribal criminal jurisdiction. The article (which is about more than simply consent, and which was authored by Chris Chaney) is here:


And the case is here:

Navajo v Hunter

Hunter seems to be about implied consent, while Hjert seems to be about express consent (which was ruled by that court to be invalid).

Can a Tribe Prosecute a Non-Indian If He Consents? Opinion from Port Gamble S’Klallam

Every now and again we like to highlight an interesting tribal court opinion. Personally, I’ve been waiting for many years to see an opinion on this subject, answered in the negative by the court.

Here is the opinion in Port Gamble S’Klallam Tribe v. Hjert.

This case seems almost easy given that the tribal constitution self-limits tribal jurisdiction by referencing federal law, suggesting that Oliphant could control this case (see page 4, quoting the PGST Const.).

What about tribes that do not have such language?