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:
Hunter seems to be about implied consent, while Hjert seems to be about express consent (which was ruled by that court to be invalid).
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?
Robert Miller has posted his paper, “Tribal Constitutions and Native Sovereignty,” on SSRN.
Here is the abstract:
More than 565 Indigenous tribal governments exercise extensive sovereign and political powers within the United States today. Only about 230 of the native communities that created these governments, however, have chosen to adopt written constitutions to define and control the political powers of their governments. Many observers would no doubt ask how a government can function without a written constitution to guide its formation and operation, and how the rights of citizens can be defined and protected without a written constitution. This essay addresses these questions and many more concerning American Indian and Alaska Native tribal constitutions. It is clear that constitutionalism is nothing new to Indigenous peoples in North America. This fact is demonstrated by the Iroquois Confederacy of the Haudenosaunee people who have governed themselves under an unwritten constitution for many hundreds of years, by the Cherokee Nation who apparently created the first written tribal constitution in 1827, by the many dozens of tribal governments who adopted written constitutions from 1837-1930, and by the hundreds of Indigenous governments who adopted constitutions under the federal Indian Reorganization Act of 1934. This essay examines these facts and more, and addresses whether modern day tribal constitutions adequately serve the needs of native communities and help these communities and their political entities to exercise and protect their sovereignty.
If you’re in Palo Alto, check it out. From the Shaking the Foundations conference website (thanks to Tom Pack):
October 16, 2:15-3:45 PM (Room 280B)
Several major U.S. Tribes are considering the adoption of new tribal constitutions while many more are unhappy with their 1930s-era Indian Reorganization Act tribal constitutions. These largely cookie-cutter constitutions were often coercively adopted and have resulted in varying degrees of success and failure. This panel will explore how tribes can take advantage of the process of developing tribal constitutions to advance tribal sovereignty, to enhance self-determination, and to improve cultural connections between tribal governments and tribal citizens. Best practices in constitution- making, pitfalls to be avoided, and the limits of the tribal constitution as a tool will also be discussed.
Kirsty Gover has published Comparative Tribal Constitutionalism: Membership Governance in Australia, Canada, New Zealand, and the United States in Law and Social Inquiry (Summer 2010) (pdf). Here is the abstract:
In the “self-governance era” of indigenous-state relations, there is a growing interest in the first-order question of tribal governance: who are the members of recognized tribes, and how are they chosen? Tribal constitutions contain formal tribal membership criteria but are not ordinarily in the public domain. This article presents findings from a study of the membership rules used in more than seven hundred current and historical tribal constitutions and codes. It offers a comparative analysis to explain significant differences between North American and Australasian tribal constitutionalism, particularly in the administration of descent, multiple membership, and disenrollment. It advances the argument that tribes self-constitute in ways that are more relational and less ascriptive than is suggested in current political theory and policy; that existing representations of tribes obscure nontribal expressions of indigeneity, on which tribes depend; and that these expressions should be officially supported in public law and policy.
“Race and American Indian Tribal Nationhood” is available for download here. [The paper is there now, sorry.]
Here is the abstract:
Modern American Indian nations face a racial paradox. On one hand, the citizenry of Indian nations is almost exclusively based in race, ethnicity, and ancestry. Indian nations would not be “Indian” without this basis. But American constitutional principles dictate that laws based on racial, ethnic, or ancestral classifications are highly disfavored. For Indian nations, this means that Indian governments have virtually no authority to regulate the activities of the non-Indian citizens that live amongst Indian communities. This paper offers a long-term solution to this conundrum, a solution that requires Indian nations and American courts and policymakers to modernize understandings about American Indian tribal nationhood. American Indian law and policy forced Indian nations into a legal status akin to “domestic racial nations.” By tweaking Indian citizenship requirements, and recognizing the national character of modern Indian nations, modern Indian nations should more properly be understood as simply “domestic nations,” much like Monaco and The Vatican.
Constructive feedback welcome.
University of Michigan NALSA
2010 Indian Law Day Schedule
Looking Inward: Tribal Governance
Blessing
1:00 – 1:10
Joseph Brave-Heart
Keynote Speaker
1:10 -1:40
Frank Ettawageshik
Former Tribal Chairman, Little Traverse Bay
Bands of Odawa Indians
Tribal Constitutions
1:45 – 2:25
Allie Maldonado, Assistant General Counsel,
Little Traverse Bay Bands of Odawa Indians
Mike Phelan, Office of the General Counsel
Pokagon Band Potawatomi Indians
Tribal Courts
2:30 – 3:10
Prof. Matthew Fletcher, Michigan State University College of Law
Amy Kullenberg, Pokagon Band of Potawatomi Indians
Break/Refreshments
3:10 – 3:25
Tribal Economic Diversification
3:25 – 4:05
Zeke Fletcher, Associate, Rosette & Associates
Prof. Matthew Fletcher, Michigan State University College of Law
Here are a few recent scholarly articles of interest to the blog:
Susan Gray, Miengun’s Children: Tales from a Mixed-Race Family, 29:2&3 Frontiers 136 (2008) — article about the children of Northport, Michigan missionary George N. Smith
David Wilkins & Sheryl Lightfoot, Oaths of Office in Tribal Constitutions, 32 Am. Indian Q. 389 (Fall 2008)
Siegfried Weissner, Indigenous Sovereignty: A Reassessment in Light of the UN Declaration, 41 Vand. J. Int’l L. 1141 (2008)
From the Billings Gazette:
When the last of the bison herds disappeared in the early 1880s, Indian nations on the Northern Plains were reduced to poverty.
In Montana, where there are no high-flying gambling operations and big population centers, economic conditions for American Indians have been slow to change. Unemployment is rampant, and business opportunities are scarce.
Through various acts of Congress, tribes are contracting with the federal government to provide essential services to their people. But federal funds, static for years, are shrinking. Tribes are taking on more responsibilities than ever for the welfare of their people and are pursuing economic opportunities to support their efforts.
I’ve always taught my federal Indian law students that many — if not most — of the tribal constitutions adopted in the years immediately following the Indian Reorganization Act were imposed on the tribes by the Bureau of Indian Affairs. These were the model IRA constitutions. If you look at the constitutions adopted around that time, you see a lot of similar features: lack of separation of powers, no tribal courts, Secretarial approvals for everything up to and including breathing. But as Blake said, he who generalizes is a fool.
Recent works of scholarship challenge that notion that the Bureau imposed model constitutions. First, Elmer Rusco’s chapter in American Indian Constitutional Reform and the Rebuilding of Native Nations. And now David Wilkins’s introduction to the new book, Felix S. Cohen’s On the Drafting of Tribal Constitutions. Elmer Rusco’s 2000 book on the IRA, A Fateful Time, argues that the BIA considered thrusting model constitutions at tribes, but rejected the plan in favor of an outline. Wilkins notes that it appears some tribes did receive a model constitution from the BIA (the one reproduced as Appendix A in the Cohen book), and others received a model corporate charter or the outline.
It would be worthwhile to do a survey of the 181 tribes that voted to accept the IRA. What do their constitutions say?
Turtle Talk 
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