Stacy Leeds and Lonnie Beard on the Tax Implications of McGirt v. Oklahoma

Stacy Leeds and Lonnie Beard have posted “A Wealth of Sovereign Choices: Tax Implications of McGirt v. Oklahoma and the Promise of Tribal Economic Development,” forthcoming in the Tulsa Law Review, on SSRN. Here is the abstract:

Justice Neil Gorsuch’s now famous opening line in McGirt v. Oklahoma will long be remembered by Indigenous nations as one of the most powerful judicial statements in the history of federal Indian law. “On the far end of the Trail of Tears was a promise.”

For that promise to be fully realized, the McGirt decision must lead to more than just increased criminal justice system responsibilities for the federal government and the impacted Indigenous nations, collectively known as the “Five Tribes.” The promise at the end of the wholesale removal and relocation of Five Tribes was not simply an empty promise of geographic boundaries, it also included a permanent homeland with fully functioning tribal governments, including powers of taxation. With the re-affirmation of reservation boundaries and the re-assumption of many governmental responsibilities, the Five Tribes necessarily have the power to raise meaningful revenue to govern.

The promise must also include diverse economic development strategies conceived of and implemented by the Five Tribes in order to take advantage of and fully realize McGirt’s newly reaffirmed reservation status. If this challenge is accepted, the Five Tribes have an opportunity to reconfirm and expand government powers that have been denied them for over a century, including the power to make the same sovereign tax choices afforded other sovereigns worldwide.

This article explores the tax implications of the McGirt decision with detailed analysis of what has changed, and what remains the same, for purposes of federal, tribal and state taxing authority. The article suggests several law and policy choices available to the Five Tribes, including how to maximize tax incentives to grow the reservation population base and support a diverse economy through small business and enterprise scale development. The article includes a call to action for tribal governments to formulate a long-term economic strategy that will take advantage of tax attributes that attach to the various reservations. In conclusion, the article suggests possible compact arrangements with other Indigenous nations and with Oklahoma’s state and local governments.

McGirt has been heralded as ushering in substantial changes for the eastern half of Oklahoma. If tribes and Oklahoma play their collective economic cards right, big change could come in the form of positive economic outcomes. Economists predict, or at least hope for, a post-COVID economic revival for rural communities in America’s heartland. To assist in this economic revival, the Five Tribes’ reservations could serve as laboratories for the formulation of economic development strategies that could serve as blueprints for other parts of rural America. For that to happen in eastern Oklahoma, McGirt will need to live up to its full potential, becoming much more than an overturned criminal conviction from inside Indian country.

New Paper on the Impact of Indian Law Scholarship

Grant Christensen (The University of North Dakota) and Melissa L. Tatum (University of Arizona – James E. Rogers College of Law) have posted “Reading Indian Law: Evaluating Thirty Years of Indian Law Scholarship,” forthcoming in the Tulsa Law Review.

Here is the abstract:

This article surveys thirty years of law review articles and compiles a formal ranking system to create a list of the 100 most influential Indian law scholarly pieces from the last thirty years. As Indian law has grown from a niche field offered by a couple schools to a robust legal discipline it is now impossible for the thousands of professors, students, practitioners, and judges to identify the most important pieces published each year. This piece, with its first of its kind approach to ranking Indian law scholarship, has the potential to not only highlight other important works but to become an article that is itself the focus of conversation.

Phil Tinker on Tribal Authority to Regulate Nonmember Conduct in Indian Country

Phil Tinker has posted his paper, “In Search of a Civil Solution: Tribal Authority to Regulate Nonmember Conduct in Indian Country,” forthcoming in the September 2014 issue of the Tulsa Law Review.

Here is the abstract:

Violence in Indian Country is epidemic. Tribal governments, which ostensibly have primary responsibility for keeping the peace within their territory, are hampered by restrictive federal laws that prohibit Tribes from exercising criminal authority over non-Indians. This is so even where those non-Indian lawbreakers live on the reservation and commit acts of violence against tribal members. Instead, the federal government is responsible for investigating and prosecuting most on-reservation crime. This irrational system is the product an archaic federal policies dating back to the 19th century that have never been adequate to protect Indian communities.

Important New Scholarship on Muscogee Tribal Jurisprudence

Sarah Deer and Cecelia Knapp have published “Muscogee Constitutional Jurisprudence: Vhakv Em Pvtakv (The Carpet Under The Law)” in the Tulsa Law Review. The paper is also available on SSRN.

The abstract:

In 1974, a group of Mvskoke citizens from Oklahoma sued the federal government in federal court. Hanging in the balance was the future of Mvskoke self-determination. The plaintiffs insisted that their 1867 Constitution remained in full effect, and that they still governed themselves pursuant to it. The United States argued that the constitution had been nullified by federal law passed in the early 1900s.

To find in favor of the plaintiffs, the court would have to rule that the United States had been ignoring the most basic civil rights of Mvskoke citizens and flouting the law for over seventy years. It would also have to find that a tribal government had been operating legitimately in the shadows—that the Mvskoke people had continued to operate under their constitution for most of the twentieth century despite official federal antagonism. It was definitely a long shot, but they won.

This article explores factors that have helped the Mvskoke people create, nurture, and sustain a constitutional government under hostile circumstances for centuries. We focus on the history and structure of the constitutional government of the Muscogee (Creek) Nation of Oklahoma. We consider several aspects of Creek conceptions of government structure and balance, which are also evidenced in the constitutional jurisprudence of the Muscogee (Creek) Nation Supreme Court. At first glance, the contemporary Mvskoke government today bears little resemblance to the ancient etvlwv town-based system of governance, but a more penetrating analysis reveals common threads of political theory and cosmogony, or world view, that have continued unabated.

Highly recommended!

New Scholarship on the Commission on State-Tribal Relations — HIGHLY RECOMMENDED

Tassie Hanna, Sam Deloria, and Charles E. Trimble have published “The Commission on State-Tribal Relations: Enduring Lessons in the Modern State-Tribal Relationship” (PDF: CSTR article final)  in the Tulsa Law Review.

An excerpt:

Forty years ago the relationship between states and tribes was primarily adversarial, both in perception and practice. Leaders of both state and tribal governments looked to the courts or Congress to define it in their favor, until events led to the creation of the Commission on State-Tribal Relations (“CSTR”) and the evolution of a different approach. The CSTR was the first organized national attempt to study the state-tribal relationship, and the principles it developed are still relevant to successful interactions of Indian and non-Indian governments. This article, written by the founders of the Commission on State-Tribal Relations, traces the historical development of a new approach to state-tribal relations in the 1970’s, during a time of heightened tension between state and tribal governments.

This is an absolute must-read for anyone working on the ground in Indian country right now, and certainly any student that wants to work in Indian affairs. Tassie, Sam, and Chuck all but invented the field of intergovernmental agreements between Indian tribes, states, local units of government, and the feds. In the 1970s, negotiating between governments with long histories of animosity was much more difficult than it is now. But even in many areas of Indian country — I’m looking at you South Dakota — intergovernmental negotiations remain difficult. This paper will be useful in returning to first principles.

Mary Kathryn Nagle on the Government’s Fidicuary Duties Pre- and Post-Dawes Act

Mary Kathryn Nagle has published “Nothing to Trust: The Unconstitutional Origins of the Post-Dawes Act Trust Doctrine” in the Tulsa Law Review (48 Tulsa L. Rev. 62 (2012)).

Here is the article:

MKNagle

Kathryn Fort on Tribal-State Cooperation and the Indian Child Welfare Act

Our own Kathryn Fort has posted her new paper, “Waves of Education: Tribal-State Cooperation and the Indian Child Welfare Act,” on SSRN. It is forthcoming in the Tulsa Law Review.

Here is the abstract:

This article focuses on the relationship and agreements between tribal and state judicial systems in Michigan. In tracing that work, the article demonstrates the cyclical nature of tribal-state court relations, and the way the welfare of Indian children binds together tribal and state judicial systems, regardless of either side’s participation. Federal intervention in this area under the auspices of the Indian Child Welfare Act (“ICWA”) virtually forces tribes and states to work together. How the personnel in the tribal and state systems interact has a huge impact on the children of the tribes in Michigan.

Twice in the past twenty years representatives of the tribal and state judiciaries in Michigan have come together to negotiate agreements, create rules, and draft legislation. Once the work is done, however, how do the courts handle these kind of agreements? Part of the problem with state ICWA laws elsewhere is the courts’ unwillingness to affirm a state law that differs from ICWA. Tribes and states willing to do the work to create a state ICWA law that is tailored to state laws, while providing more than the minimum standards created by the federal ICWA, have at times been greeted with hostility in the courts. Regardless, the relationships that develop through the process of drafting these laws and agreements benefit both tribal and state systems.

New Scholarship on Intergovernmental Agreements at Navajo

Paul Spruhan has posted “Standard Contract Clauses in State-Tribal Agreements: The Navajo Nation Experience“, forthcoming in the Tulsa Law Review, on SSRN.

Here is the abstract:

The paper discusses the attempts by the Navajo Nation and the States of Arizona and New Mexico to create standard contract clauses for agreements between the Nation and those states. The Nation and the States have numerous contractual relationships, primarily concerning funding for Nation programs, but also concerning law enforcement, rights-of-way grants, and other issues. Sovereignty issues on both sides have complicated the contracting process, as the Nation and the states have legislatively-mandated contract clauses that each must include in their agreements. Further, dispute resolution issues have caused friction, as each side possesses sovereign immunity but allows arbitration if enforcement of an award is brought in its own court system.

In an attempt to resolve these issues, the Nation and the states recently have established standard contract clauses that apply generally to agreements between the sovereigns. The standard clauses allow for arbitration of disputes, with enforcement against the states in state court, and against the Nation in Navajo Nation court. In the case of Arizona, the standard clauses also cover discrimination, citizenship verification, and other issues. Though all issues have not been resolved by these clauses, and it remains to be seen how such clauses will be implemented, the standard contract clause model can be useful to other tribes and states who seek efficient and consistent methods of contracting without sacrificing core principles of tribal and state sovereignty.