Important New Scholarship on the Originalist Foundations of the Indian Canons and Tribal Sovereignty

Seth Davis, Eric Biber & Elena Kempf have posted “Persisting Sovereignties,” forthcoming in the University of Pennsylvania Law Review, on SSRN. Here is the abstract:

From the first days of the United States, the story of sovereignty has not been one of a simple division between the federal government and the states of the Union. Then, as today, American Indian tribes persisted as self-governing peoples with ongoing and important political relationships with the United States. And then, as today, there was debate about the proper legal characterization of those relationships. The United States Supreme Court confronted that debate in McGirt v. Oklahoma when, in an opinion by Justice Neil Gorsuch, it held that the reservation of the Muscogee (Creek) Nation “persists today.” The Court’s recognition of the persistence of Tribal sovereignty triggered a flurry of critical commentary, including from federal lawmakers who share Justice Gorsuch’s commitment to originalism. But the original story of federal Indian law supports the persistence of tribal sovereignty.

Through its treaty practice, and opinions of its Supreme Court, the United States recognized Indian tribes as political communities whose preconstitutional sovereignty persisted despite their incorporation within U.S. territory. According to the Marshall Court, tribes were “states” and “nations” with whom the United States had formed political relationships. These terms, the Court explained, had a “well-understood meaning” under the law of nations and applied to tribes as they applied “to the other nations of the earth.” This Article explores the original public meaning of those terms as they applied to Indian tribes through the first comprehensive analysis of the international law commentary cited by the Marshall Court as well as historical examples of shared sovereignty that were familiar to lawyers during the early Republic.

In particular, this Article explores two consequences of tribes’ status as “states” and “nations” under international law during the early Republic. First, it provides an originalist foundation for the Indian canon of construction’s rule that tribal sovereignty is preserved unless expressly surrendered. Like states under international law, tribes retained whatever measure of sovereignty they did not expressly surrender by agreement. Accordingly, a court interpreting an Indian treaty must construe ambiguous terms to retain tribal sovereignty. Today, this rule of interpretation is known as the Indian canon of construction and is thought to be peculiar to federal Indian law. To the contrary, however, the Indian canon’s foundations include generally accepted principles of the law of nations at the time of the Founding. Second, this understanding of Indian tribes as “states” implies that the sovereignty of tribes is not divested by their incorporation within the United States and persists despite periods in which federal and state governments have prevented its exercise. This principle, which has important implications for contemporary debates in federal Indian law, not only justifies the Court’s recognition of tribal persistence in McGirt, but also offers a way for thinking about the future story of divided sovereignty in the United States.

Penn. Law Review Note on the Constitutionality of VAWA’s Tribal Jurisdiction Provisions

Here is “Special Domestic Violence Criminal Jurisdiction For Indian Tribes: Inherent Tribal Sovereignty Versus Defendants’ Complete Constitutional Rights.”

The abstract:

Special domestic violence criminal jurisdiction for Indian tribes took effect nationally on March 7, 2015, and it was a historic moment for the tribes. Ever since the Supreme Court’s 1978 decision in Oliphant v. Suquamish Indian Tribe, tribes had been powerless to exercise criminal jurisdiction over non‐Indian defendants. Because the Court held that “Indian tribes do not have inherent jurisdiction to try and punish non‐Indians,” an unfortunate gap in enforcement resulted: for crimes committed in Indian country, where states’ criminal jurisdiction is limited and where the federal government lacks the resources to prosecute crimes effectively, non‐Indian offenders regularly escaped prosecution. This problem was particularly disturbing in the context of domestic violence and related crimes. For example, sixty‐seven percent of the sexual abuse and related offenses committed in Indian country and charged in fiscal years 2005–2009 were left unprosecuted by the federal government.

Enter VAWA 2013 and special domestic violence criminal jurisdiction for Indian tribes. Recognizing that “much of the violence against Indian women is perpetrated by non‐Indian men” who “regularly go unpunished,” Congress intended special domestic violence criminal jurisdiction to fill the prosecutorial enforcement gap for domestic violence offenses. Codified at 13 U.S.C. § 1304, the new provisions recognize tribes’ “inherent power . . . to exercise special domestic violence criminal jurisdiction over all persons”—including non‐Indians.

Although tribes and their advocates have celebrated VAWA 2013’s partial override of the Oliphantdecision, special domestic violence criminal jurisdiction has yet to withstand constitutional scrutiny at the Supreme Court. In the debates before VAWA 2013’s passage, tribal jurisdiction over non‐Indians sparked controversy because legislators and commentators understood that non‐Indian defendants prosecuted and tried in tribal court would not receive the full protection of the federal Constitution. This constitutional question—whether the Constitution applies in full force in prosecutions brought under special domestic violence criminal jurisdiction—turns on whether the expanded tribal jurisdiction is an exercise of “inherent” tribal sovereignty or delegated federal authority. If the new jurisdiction is an exercise of inherent tribal sovereignty, then tribes are not obligated to provide non‐Indian defendants with the full protection of the federal Constitution. But if the new jurisdiction is delegated federal authority, then non‐Indian defendants would be entitled to the full panoply of rights under the federal Constitution—including, potentially, the right to an Article III judge appointed by the President and confirmed by the Senate under Article II of the Constitution. The bounds of inherent tribal sovereignty could thus determine whether special domestic violence criminal jurisdiction lives or dies.

This Comment begins in Part I by outlining the history of tribal criminal jurisdiction in Indian country, with a focus on the law most relevant to analyzing the bounds of tribes’ inherent sovereignty to adjudicate crimes over non‐Indians. Part II explains VAWA 2013’s special domestic violence criminal jurisdiction in more detail and summarizes how it has been implemented since the statute’s enactment. Part III discusses the arguments for and against finding that tribes have inherent tribal sovereignty to exercise special domestic violence criminal jurisdiction, and why the outcome matters for both tribes and non‐Indian defendants. Part IV takes an aside to note the lurking influence of the congressional plenary power doctrine, which gives Congress broad authority to legislate in the realm of Indian affairs. And Part V outlines how courts’ ultimate rulings (and their underlying reasoning) would affect special domestic violence criminal jurisdiction’s future. The Conclusion addresses the underlying questions: What are the bounds of tribes’ inherent sovereignty? From what does that sovereignty derive? The answer will affect not just special domestic violence criminal jurisdiction under VAWA 2013, but also possible future expansions of tribal criminal jurisdiction by Congress.

Penn. Law Review Note on Judicial Abolition of Indian Slavery in Virginia

Here is a pdf link to the article, which is titled, “Making Indians “White”: The Judicial Abolition of Native Slavery in Revolutionary Virginia and its Racial Legacy.” Also available on SSRN.

An excerpt:

In 1772, George Mason, later famous as the “Father of the Bill of Rights,” represented a slave named Robin and eleven other enslaved plaintiffs in the General Court of Virginia, the colony’s highest court. The slaves claimed that maternal descent from an American Indian made their enslavement illegal, and Mason marshaled arguments from natural law and statutory history to support that contention. In a terse one-paragraph opinion typical of the era, the court agreed, freeing the plaintiffs and ordering their former master to pay them nominal damages.

Freedom suits were common in colonial Virginia. Although defined as property for almost all legal purposes and denied rights of citizenship, slaves could allege illegal enslavement and sue for their freedom. Courts recognized such claims throughout the slaveholding South from slavery’s seventeenth-century beginnings onward; these suits offered one of the few routes to manumission in early America.

The ordinary posture of the Robin v. Hardaway case, though, belied its extraordinary result. The court’s decision marked a watershed in the legal history of Virginian slavery; it was the first recorded holding of an Anglo-American court that maternal descent from an American Indian alone established the right to freedom. This outcome was remarkable in the context of early America, where, despite present-day conceptions that all slaves were Africans, Indian slavery was ubiquitous. Indian slaves could be found in all thirteen mainland British colonies in 1772, as well as in the French and Spanish colonies of North America. In Virginia alone, thousands of descendants of enslaved Indians toiled alongside African slaves on plantations. Robin v. Hardaway repudiated this history and deemed the previously common institution illegal in all but a few circumstances, inaugurating a line of cases that culminated in 1806. In the end, Virginia courts concluded that enslaved descendants of Native Americans were “prima facie free,” judicially abolishing Indian slavery in Virginia. This precedent spread: throughout the antebellum period, courts in Connecticut, Louisiana, Missouri, New Jersey, South Carolina, and Tennessee all grappled with Virginia’s decisions and debated whether maternal descent from American Indians was sufficient to establish freedom.

Penn Law Review Comment on the UN Declaration & Indigenous Courts

The University of Pennsylvania Law Review has published a paper (with a really long title I don’t feel like typing) on the UN Declaration and Indigenous Peoples’ courts. It is here. It looks like a good read. Here is the summary of the argument in the paper:

This Comment makes two arguments, one broad and one narrow. Broadly, it argues that concerns of the United States and others about the “workability” of the DRIP–at least regarding self-determination–are misplaced, and that the meaning of self-determination is clearly delimited, not merely by Article 46(1), but by the substantive rights conferred in the DRIP. The Comment argues that the appropriate way to understand the DRIP’s self-determination provisions involves a two-stage process, moving first from the skeletal right conferred in Article 3 to the more substantive Article 4, and then to specific features of the right conferred in subsequent provisions. This broader argument is woven through a more narrowly focused argument that examines the applicability of a single provision in the DRIP–Article 34, which confers rights to “juridical systems”–to “egalitarian juridical pluralism” (EJP), the emerging recognition of the exclusive jurisdiction of indigenous courts. On this score, the Comment argues that EJP is an appropriate exercise of the rights guaranteed by Article 34. By examining the applicability of EJP to Article 34, this Comment seeks to shed light not only on the meaning and workability of Article 34, but also on the content and functionality of the overarching right of self-determination conferred in Article 3. As the United States has asserted, this right is “fundamental” “to interpreting all of the provisions” in the DRIP.

One quibble. Footnote 168 is just a bit off:

To contrast with just one example, tribal courts in the U.S. system are not constitutionally mandated; rather, they are created under the auspices of Congress’s Article I powers and are thus akin to administrative courts. Any decisions by U.S. tribal courts can be overturned by a simple act of Congress. See Catherine T. Struve, Tribal Immunity and Tribal Courts, 36 Ariz. St. L.J. 137, 137 (2004) (“[T]he Supreme Court has stripped tribes of many of the positive aspects of governmental authority[, including] key aspects of legislative and adjudicative authority ….”); id. at 145 (discussing “Congress’s plenary power over Indian tribes”).

Most tribal courts have developed without federal government control, although many have been funded in part by federal grants. Some tribal courts originated as “CFR Courts” or “Courts of Indian Offenses,” created by the Dept. of Interior, but few of these remain under federal control. So, contrary to the assertion made in the footnotes, tribal courts are Indigenous, meaning that the power they exercise is tribal sovereign power, not federal power. See United States v. Lara, 541 U.S. 193 (2004).