Stanford Law Review

Elizabeth Reese on the Exclusion of Tribal Law from “American Law”

Matthew L.M. Fletcher

Elizabeth Reese has posted “The Other American Law,” forthcoming from the Stanford Law Review, on SSRN.

Here is the abstract:

American legal scholarship focuses, almost exclusively, on state and federal law. However, there are an additional 574 federally recognized tribal governments within the United States whose laws are largely ignored. This article brings to the fore the exclusion of tribal governments and their laws from our mainstream conception of “American law” and identifies this exclusion as both an inconsistent omission and a missed opportunity. Tribal law should be no less “American law” than federal and state law. Tribal law is also made, enforced, and followed by American citizens, and tribal governments have a distinct place as a sub-sovereign within the American system of overlapping sovereigns. Nor is it clearly less important, as tribes govern millions of Americans and as much land as California. And yet, tribal law is excluded from our shared conception of “American law”—and thereby our research projects, classrooms, and even conversations. This exclusion perpetuates the “othering” of tribal law and governments and harmful present day misunderstandings or invisibilities for both Indian people and their governments. Tribal governments were previously delegitimized and described as “lawless” in order to legitimize legal theories of conquest. But tribal law is real, and it is time to end its marginalization. Moreover, tribal law is vast, varied, and can be innovative. As demonstrated by the three examples in this piece, tribal governments struggle with the same kinds of problems that the other American sovereigns face, and their similarities, differences, successes, failures, innovations, etc. can inform other American sovereign’s work or public law questions more broadly. Omitting tribal law from American legal scholarship is not only a troubling inconsistency, it is a missed opportunity to tap a potentially valuable resource—a disservice to the search for good government ideas. Tribal law belongs in the mainstream study of American law and legal systems. This article places it there.

Highly recommended!

Kristen Carpenter and Angela Riley on Privatizing the Reservation

Matthew L.M. Fletcher

Kristen A. Carpenter and Angela R. Riley have published “Privatizing the Reservation?” with the Stanford Law Review (PDF).

Abstract:

The problems of American Indian poverty and reservation living conditions have inspired various explanations. One response advanced by some economists and commentators, which may be gaining traction within the Trump Administration, calls for the “privatization” of Indian lands. Proponents of this view contend that reservation poverty is rooted in the federal Indian trust arrangement, which preserves the tribal land base by limiting the marketability of lands within reservations. In order to maximize wealth on reservations, policymakers are advocating for measures that would promote the individuation and alienability of tribal lands, while diminishing federal and tribal oversight.

Taking a different view, this Article complicates and challenges the narrative of Indian poverty and land tenure advanced by privatization advocates. We focus on real estate and housing in Indian Country to make three points. First, we argue that the salience of Indian homelands as places of collective religious significance, socioeconomic sustenance, and territorial governance has been lost in the privatization debate, which also largely disregards issues of remedial justice associated with conquest and colonization. Second, we introduce to the legal literature new empirical data and economic analysis from the Native Nations Institute demonstrating that the current system of land tenure in Indian Country is much more varied, and recent innovations in federal-tribal housing and finance programs are more promising, than some of the calls for privatization would suggest. Finally, using specific examples from Indian Country, we highlight a model of indigenous self-determination and sustainability, rooted in the international human rights movement, that deserves attention in ongoing domestic policy debates about land tenure, and which has the potential to advance the well-being of humanity more broadly.

Gregory Ablavsky on the Original Meaning of “With the Indian Tribes”, Race, and Citizenship

Matthew L.M. Fletcher

Gregory Ablavsky has published “With the Indian Tribes”: Race, Citizenship, and Original Constitutional Meanings in the Stanford Law Review.

Here is the abstract:

Under black-letter law declared in the U.S. Supreme Court’s decision in Morton v. Mancari, federal classifications of individuals as “Indian” based on membership in a federally recognized tribe rely on a political, not a racial, distinction, and so are generally subject only to rational basis review. But the Court recently questioned this longstanding dichotomy, resulting in renewed challenges arguing that because tribal membership usually requires Native ancestry, such classifications are race based.

The term “Indian” appears twice in the original U.S. Constitution. A large and important scholarly literature has developed arguing that this specific constitutional inclusion of “Indian Tribes” mitigates equal protection concerns. Missing from these discussions, however, is much consideration of these terms’ meaning at the time of the Constitution’s adoption. Most scholars have concluded that there is a lack of evidence on this point—a gap in the historical record.

This Article uses legal, intellectual, and cultural history to close that perceived gap and reconstruct the historical meanings of “tribe” and “Indian” in the late eighteenth century. This Article finds not a single original meaning but duality: Anglo-Americans of the time also alternated between referring to Native communities as “nations,” which connoted equality, and “tribes,” which conveyed Natives’ purported uncivilized status. They also defined “Indians” both in racial terms, as nonwhite, and in jurisdictional terms, as noncitizens.

These contrasting meanings, I argue, have potentially important doctrinal implications for current debates in Indian law, depending on the interpretive approach applied. Although the term “tribe” had at times derogatory connotations, its use in the Constitution bolsters arguments emphasizing the significance of Native descent and arguably weakens current attacks on Native sovereignty based on hierarchies of sovereignty among Native communities. Similarly, there is convincing evidence to read “Indian” in the Constitution in political terms, justifying Mancari’s dichotomy. But interpreting “Indian” as a “racial” category also provides little solace to Indian law’s critics because it fundamentally undermines their insistence on a colorblind Constitution.

Kristen Carpenter & Angela Riley: “Privatizing the Reservation?”

Matthew L.M. Fletcher

Kristen A. Carpenter and Angela R. Riley have posted their fascinating article, “Privatizing the Reservation?“, on SSRN. The article is forthcoming in the Stanford Law Review. Here is the abstract:

The problems of American Indian poverty and reservation living conditions have inspired various explanations. One account advanced by certain economists and commentators is now animating the Trump administration’s apparent desire to ‘privatize’ Indian lands, namely that reservation poverty is rooted in the federal Indian trust arrangement, which preserves the tribal land base by limiting the marketability of lands within reservations. Policy makers are advocating for measures that would promote the individuation and alienability of tribal lands, while diminishing federal and tribal oversight, toward wealth maximization. Taking a different view, this Article complicates and challenges the narrative of Indian poverty and land tenure advanced by advocates for privatization. We focus on real estate and housing in Indian Country to make three points. First, we argue the salience of American Indian homelands as places of collective religious significance, socio-economic sustenance, and territorial governance has been lost in the privatization debate, which also largely disregards issues of remedial justice associated with conquest and colonization. Second, we introduce to the legal literature new empirical data and economic analysis demonstrating that the current system of land tenure in Indian Country is much more varied, and recent innovations in federal-tribal housing and finance programs are more promising, than some of the calls for privatization would suggest. Finally, using specific examples from Indian Country, we highlight a model of indigenous self-determination and sustainability, rooted in the international human rights movement, that deserves attention in ongoing domestic policy debates with the potential to advance the well-being of humanity more broadly.

Gregory Ablavsky on the Phrase “With the Indian Tribes” in the Commerce Clause

Matthew L.M. Fletcher

Gregory Abalvsky has posted “‘With the Indian Tribes’: Race, Citizenship, and Original Constitutional Meanings,” forthcoming in the Stanford Law Review.

Here is the abstract:

Under black-letter law declared in Morton v. Mancari, federal classifications of individuals as “Indian” based on membership in a federally recognized tribe rely on a political, not a racial, distinction, and so are generally subject only to rational-basis review. But the Supreme Court recently questioned this long-standing dichotomy, resulting in renewed challenges arguing that, because tribal membership usually requires Native ancestry, such classifications are race-based.

The term “Indian” appears twice in the original U.S. Constitution. A large and important scholarly literature has developed arguing that this specific constitutional inclusion of “Indian tribes” mitigates equal protection concerns. Missing from these discussions, however, is much consideration of these terms’ meaning at the time of the Constitution’s adoption. Most scholars have concluded that there is a lack of evidence on this point—a “gap” in the historical record.

This Essay uses legal, intellectual, and cultural history to close that “gap” and reconstruct the historical meanings of “tribe” and “Indian” in the late eighteenth century. Rather than a single “original meaning,” it finds duality: Anglo-Americans of the time also alternated between referring to Native communities as “nations,” which connoted equality, and “tribes,” which conveyed Natives’ purported uncivilized status. They also defined “Indians” both in racial terms, as non-white, and in jurisdictional terms, as non-citizens.

These contrasting meanings, I argue, have potentially important doctrinal implications for current debates in Indian law, depending on the interpretive approach applied. Although the term “tribe” had at times derogatory connotations, its use in the Constitution bolsters arguments emphasizing the significance of Native descent and arguably weakens current attacks on Native sovereignty based on invidious legal distinctions among Native communities. Similarly, there is convincing evidence to read “Indian” in the Constitution in political terms, justifying Morton’s dichotomy. But interpreting “Indian” as a “racial” category also provides little solace to Indian law’s critics, since it fundamentally undermines their insistence on a colorblind Constitution.

Sarah Krakoff on American Indian Tribes, Race, and the Constitution

Matthew L.M. Fletcher

Sarah Krakoff has published “They Were Here First: American Indian Tribes, Race, and the Constitutional Minimum” in the Stanford Law Review. Here is the abstract:

In American law, Native nations (denominated in the Constitution and elsewhere as “tribes”) are sovereigns with a direct relationship with the federal government. Tribes’ governmental status situates them differently from other minority groups for many legal purposes, including equal protection analysis. Under current equal protection doctrine, classifications that further the federal government’s unique relationship with tribes and their members are subject to rationality review. Yet this deferential approach has recently been subject to criticism and is currently being challenged in the courts. Swept up in the larger drift toward colorblind or race-neutral understandings of the Constitution, advocates and commentators are questioning the distinction between tribes’ political and racial statuses and are calling for the invalidation of child welfare and gaming laws that further tribes’ unique sovereign status.

The parties urging strict scrutiny of laws that benefit tribes contend that tribal membership rules, which often include elements of lineage or ancestry, are the same as racial classifications. In their view, tribes are therefore nothing other than collections of
people connected by race. Yet federal law requires tribes (as collectives) to trace their heritage to peoples who preceded European/American settlement in order to establish a political relationship with the federal government. Descent and ancestry (not the sociolegal category of “race”) make the difference between legitimate federal recognition of tribal status and unauthorized, unconstitutional acts by Congress. Congress, in other words, cannot establish a government-to-government relationship with just any group of people. Tribes are treated differently from other groups due to their ties to the indigenous peoples of North America. These ties comprise a constitutional minimum requirement for federal tribal recognition. This constitutional understanding of tribes derives from the international law origins of the federal-tribal relationship and is reflected in contemporary case law and federal regulations.

The argument advanced in this Article might be seen as a form of American Indian law exceptionalism. Yet it is consistent with racial formation theory’s project of understanding race as a construction that serves, creates, and perpetuates legalized subordination and shapes daily social conceptions and interactions. Racial formation theory calls for multiple accounts of racialization depending on the social and economic purposes served by each group’s subordination. On the remedial side, racial formation theory therefore necessarily anticipates what we might think of as multiple exceptionalisms. Put more simply, racism takes different forms for each group to which inferior characteristics have been ascribed. Undoing the effects of racism therefore requires customization. Reversing policies that aimed to eliminate Native people, and the racialized understanding of Indians that drove those policies, requires maintaining the political status of tribes as separate sovereigns, not destroying it in the name of an ahistorical conception of “race” neutrality. This Article untangles the legitimate constitutional basis for tribal recognition—that tribes can trace their ancestry to a time before nonindigenous arrival—from the racial logic that nearly eliminated tribes from the continent despite their unique constitutional status.