Tulsa Law Review

Important New Scholarship on Muscogee Tribal Jurisprudence

Matthew L.M. Fletcher

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

Matthew L.M. Fletcher3 Comments

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

Matthew L.M. Fletcher1 Comment

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

Matthew L.M. Fletcher

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

Matthew L.M. Fletcher

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.

AALS Indian Nations and Indigenous Peoples Section Call for Papers

Matthew L.M. Fletcher

CALL FOR PAPERS

EMERGING MODELS OF TRIBAL AND STATE COOPERATIVE AGREEMENTS

The AALS Indian Nations and Indigenous Peoples Section is seeking submissions for its 2011 publication of selected papers.  The Section will meet during the American Association of Law School’s Annual Conference on January 7, 2011.  The Indian Nations and Indigenous Peoples Section Meeting will focus on “Emerging Models of Tribal and State Cooperative Agreements.”  The University of Tulsa Law Review will publish the accepted papers.

Many Tribes have entered an era in which they recognize the importance of working with states in areas of common concern to their respective citizens.  As a result, Tribes are considering an increasing number of judicial agreements and other cooperative arrangements with states.  The AALS Indian Nations and Indigenous Peoples Section seeks papers that analyze these emerging models and agreements.  Papers should address current issues in Tribal-State relationships and how those cooperative arrangements affect tribal sovereignty.   A broad range of topics in this subject area will be considered.  These may include areas such as economic development, education, health and public safety, the environment, Tribal and State court agreements, and others.

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New Paper by Alex Skibine on Indian Cultural and Religious Rights

Matthew L.M. Fletcher

Alex Tallchief Skibine has posted his paper, “Culture Talk or Culture War in Federal Indian Law?“, forthcoming in the Tulsa Law Review (2010).

Here is the abstract:

In this article, I ask whether in the area of Native American cultural and religious rights federal law is more inclined towards “culture talk” meaning accommodations and compromises, or whether the attitude is more one of “culture war,” meaning geared towards confrontation and intolerance. I answer the question by focusing on how the law has treated Native American rights in four areas: use of peyote and controlled substances, possession of eagle feathers, implementation of the Native American Graves Protection Act, and protection of sacred sites. Not surprisingly, I conclude that there are both culture talks and culture wars going on. On the other hand, perhaps surprisingly, I find that among the three branches of the federal government, the courts have been the least willing to accommodate Native cultural and religious interests

Bob Anderson on Alaska Native Rights

Matthew L.M. Fletcher5 Comments

Bob Anderson has posted his paper, “Alaska Native Rights, Statehood, and Unfinished Business,” published in the Tulsa Law Review, on SSRN. Here is the abstract:

Alaska Native aboriginal rights to land and associated resources were never dealt with in a comprehensive fashion until 1971, when Congress passed the Alaska Native Lands Claims Settlement Act. Although general principles of federal Indian law provided strong support for the proposition that Alaska’s Native people held aboriginal title to much of the new state, the Alaska Statehood Act itself carefully disclaimed any effect on aboriginal title. This approach was in keeping with the Congress’s past dealings with Alaska Native property rights. This article outlines the history of Alaska Native aboriginal rights through the Statehood Act along with their post-statehood treatment in the Alaska Native Claims Settlement Act and the Alaska National Interest Lands Conservation Act. The article closes with a look at the unsatisfactory treatment of two important aboriginal rights – access to fish and game and tribal sovereignty – and suggests that these areas should be revisited in consultation with Alaska Native peoples.

Angelique Eaglewoman: The Philosophy of Colonization Underlying Taxation Imposed Upon Tribal Nations within the United States

Matthew L.M. Fletcher

Angelique Eagelwoman (soon to be at Idaho Law) has posted “The Philosophy of Colonization Underlying Taxation Imposed Upon Tribal Nations within the United States” on SSRN. Here is the abstract:

Tribal Nations are inherently sovereign by internal definition as well as by classic European political science theory. Voluntary wealth distribution was the basis for the functioning of tribal government rather than externally imposed demands for pro rata shares of individual tribal member income. Through treaty-making with Tribal Nations, the United States expanded and asserted its ability to govern the influx of European immigrants and captive Africans by recognizing tribal territorial boundaries and seeking peaceful relations. Within the United States Constitution, Tribal Nations are mentioned in terms of not being taxed and as engaged with Congress in terms of commerce. Despite this history, U.S. relations shifted on one of military dominance over Tribal Nations skewing the sovereign-to-sovereign relationship set forth in treaty agreements.

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