tribal sovereignty

Interesting Quote from a CA4 Concurring Opinion re: Tribal Sovereignty and Tribal Corporations

Matthew L.M. Fletcher

Tribal corporations are still sovereigns, end of story. From United States v. Bly (concurring opinion)

It does point to the fact that, in addition to being a state agency, the University is a corporation under state law. This is true but irrelevant. The Supreme Court has never suggested that the state law designation of a sovereign entity as a corporation eliminates that entity’s status as a sovereign. Indeed, when a sovereign Indian Tribe and a corporation that was an “ ‘arm’ of the Tribe” sought to be recognized as “person[s]” under a federal statute, the Supreme Court denied this status to both the Tribe and corporation, without distinguishing the two, because both were sovereign entities. Inyo County v. Paiute-Shoshone Indians, 538 U.S. 701, 704, 705 n. 1 (2003). Similarly, the Court has recognized that although “state officials literally are persons,” they are nonetheless presumed not to be included within the statutory term “person” when acting in their “official capacity” because in those circumstances they are “no different from … the State itself.” See Will v. Mich. Dept. of State Police, 491 U.S. 58, 64, 71 (1989).

Indian Frauds in Court

Matthew L.M. Fletcher

A few years ago, I saw a presentation by an FBI agent based out of Bismarck, North Dakota in which he described how many of the survivalist, tax protester-type of virulent anti-government “citizens” had gone way underground after 9/11 and the USA Patriot Act. A couple years later, some of them reappeared as Indians and Indian tribes — the worst kind of Indian fraud imaginable. There have always been, I suspect, people trying to be pretend Indians in an attempt to garner something (money, rights, etc.) they otherwise would not be entitled to. Here, it appears, are whites trying to hide behind tribal sovereign immunity and tribal sovereignty in general.

I wrote about these guys first in 2006 at the For the Seventh Generation blog. And every few months since, another (usually unreported) state or federal court case comes up in which these people are trying to avoid taxes or conviction because of their “Indianness.” I think it’s worthwhile to keep track of these cases.

Here’s the most recent one (I think) — Mortgage Electronic Registration Systems v. Powell, a New Jersey court of appeals case. Here’s the unreported opinion: Opinion

Here’s the relevant language in the opinion (this one tried to avoid paying a debt):

Defendant nevertheless argues that she enjoys “sovereign immunity” both as a member of an Indian tribe because she is “Wanda Lee: Ben El Powell ™©, a Pre-Columbian Indigenous Sovereign Yamassee Muur/Moor,” and as “the secured Private Party, Holder in due Course, by the Commercial Remedy in Law, Filing the UCC1 … [and has] Regained [her] Divine Sovereign Human Rights.” 

Patrice Kunesh on ICWA: “Borders Beyond Borders”

Matthew L.M. Fletcher

Patrice Kunesh (South Dakota Law) has posted “Borders Beyond Borders: Protecting Essential Tribal Relations Off Reservation Under the Indian Child Welfare Act” on her BEPRESS Selected Works site.

Patrice presented her paper at the 3rd Annual Indigenous Law Conference, “Facing the Future: The Indian Child Welfare Act at 30.”

Abstract:

2008 is the thirty year anniversary of the enactment of the Indian Child Welfare Act (ICWA), one of the most dynamic pieces of legislation in federal Indian affairs that irrevocably changed the jurisdictional prerogatives of states and tribes. ICWA’s tribal wardship provision is remarkably constructive because it vests tribes with exclusive jurisdiction over Indian children who are wards of the tribal court–irrespective of the child’s domicile. This jurisdictional scheme, a rough mixture of territorial and personal criteria, defies the normative notions of state court jurisdiction over family relations. And the cross-hatching of state and tribal interests in off-reservation child welfare matters has engendered serious tension and questions about the precise contours of tribal sovereignty and the boundary line between state and tribal power.

This article investigates the transformation point between tribal and state jurisdiction over Indian child welfare matters. From an examination of the historical development of tribal wardship decisions and ICWA’s legislative history, material unexamined in this context in other scholarship, I posit that tribes, as unique political entities in our federal system of government, possess inherent attributes of sovereignty to regulate their internal social relations. ICWA is premised on the dual nature of tribal sovereignty, and allows, if not encourages, tribes to redefine their relationship to state governments by recognizing that the power to adjudicate internal matters, including child custody matters, derives from a source independent of the land. Thus, there are no real boundaries to protecting these essential tribal relations where the exercise of tribal authority is vital to the maintenance of tribal integrity and self-determination.