Alex Skibine on Textualism and the Indian Canons of Statutory Construction

Alexander Tallchief Skibine has posted “Textualism and the Indian Canons of Statutory Construction,” forthcoming in the University of Michigan Journal of Law Reform, on SSRN.

Here is the abstract:

When interpreting statutes enacted for the benefit or regulation of Indians or construing treaties signed with Indian Nations, courts are supposed to apply any of five specific canons of construction relating to the field of Indian Affairs. Through an examination of the Supreme Court’s cases involving statutory or treaty interpretation relating to Indian nations since 1987, this Article demonstrates that the Court has generally been faithful in applying canons relating to treaty interpretation or abrogation. The Court has also respected the canon requiring unequivocal expression of congressional intent before finding an abrogation of tribal sovereign immunity. However, there are two other canons that the Court almost never applies. One requires clear intent to interfere with tribal sovereign rights, the other requires statutes to be construed liberally with ambiguities resolved to the benefit of Indians. After reviewing the possible reasons why textualist jurists might be opposed to the use of substantive canons, this Article makes two arguments to remedy any reluctance to use these two canons: First, these canons have constitutional roots and as such even textualists on the Court should not be reluctant to use them. Secondly, the canon applicable to abrogation of tribal sovereign immunity should also be applied to statutes interfering with tribal sovereign rights. There are no normative reasons to treat abrogation of sovereign immunity differently than other statutory interference with tribal sovereignty.

Highly recommended!

University of Michigan Journal of Law Reform Symposium — Panel on History of Property Dispossession

Moderator, Bernadette Atuahene, Beryl Satter, Louise Seamster, Michael Witgen, Mary Kathlene Sickel (symposium editor)

Michigan Journal of Law Reform 2019-2020 Symposium — “Dispossessing Detroit: How the Law Takes Property”

Here:

Law Reform Symposium

WHEN: Saturday, November 9, 8 AM – 5 PM 

WHERE: Hutchins Hall (various locations) 

WHAT: The goals of this Symposium are to provide historical and political context for current issues of property dispossession and to consider how governments, private industry, and private citizens can together seek reform. We are excited to bring together voices from law, policy, city government, community organizations, and more to engage the audience on this critical topic! Whether your interests are in tax foreclosure, bankruptcy, or Detroit’s story of dispossession, we hope you will join us. 

RSVP: https://dispossessingdetroitsymposium.com/rsvp-comment/ 

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New Scholarship on Tribal Criminal Jurisdiction

Lindsey Trainor Golden (a former student of mine) has published “Embracing Tribal Sovereignty to Eliminate Criminal Jurisdiction Chaos” in the University of Michigan Journal of Law Reform.

From the article:

This Note argues that the current federal laws regarding tribal criminal jurisdiction are contrary to existing policies that recognize inherent tribal sovereignty, and that to fully restore tribal sover- eignty and reduce reservation crime rates, Congress should revise the MCA and the TLOA to comprehensively address the legal bar- riers that adversely affect tribes’ ability to prosecute crimes committed within their geographic borders.

Ann Tweedy on the Constitution, the Marshall Trilogy, and U.S. v. Lara

Ann Tweedy has posted “Connecting the Dots Between the Constitution, the Marshall Trilogy, and United States v. Lara: Notes Toward a Blueprint for the Next Legislative Restoration of Tribal Sovereignty” on SSRN. This paper is forthcoming in one my favorite journals, the University of Michigan Journal of Law Reform. Here is the abstract:

This law review article examines: (1) the underpinnings of tribal sovereignty within the American system; (2) the need for restoration based on the Court’s drastic incursions on tribal sovereignty over the past four decades and the grave circumstances, particularly tribal governments’ inability to protect tribal interests on the reservation and unchecked violence in Indian Country, that result from the divestment of tribal sovereignty; (3) the concept of restoration as illuminated by United States v. Lara, and finally (4) some possible approaches to partial restoration.

The article first evaluates the constitutional provisions relating to Indians and the earliest federal Indian law decisions written by Chief Justice Marshall on the premise that these two sources shed light on the upper limits of a potential legislative restoration of tribal sovereignty. Next, the article examines the judicial trend of divestment of tribal sovereignty, focusing particularly on the latest decisions that evidence this trend. The article further examines the negative effects of this divestment in Indian Country, from impeding tribes’ ability to provide governmental services and to protect their unique institutions, to problems of widespread on-reservation violence, particularly against Indian women. The article concludes that the judicial trend of divesting tribal sovereignty combined with these dire effects clearly demonstrate a need for restoration. Finally, the article examines the Lara holding and its implications for the types of restoration that will be upheld by Court, concluding with an examination of options for potential legislative restorations.

This looks like a very interesting paper, and may be the first paper that digests the recent scholarship on the scope of the Indian Commerce Clause from Pommersheim, Natelson, and others.