Washington & Lee Law Review

Alex Fay on Elk v. Wilkins

Matthew L.M. Fletcher

Alexandra Fay has posted “”Subject to the Jurisdiction Thereof”?: Citizenship and Empire in Elk v. Wilkins,” forthcoming in the Washington & Lee Law Review, on SSRN.

Here is the abstract:

In 1884, the Supreme Court held that the Fourteenth Amendment’s guarantee of birthright citizenship did not apply to Native Americans. In Elk v. Wilkins, the Court denied John Elk the right to vote on the grounds that he was born a tribal member, not subject to the jurisdiction of the United States, and thus ineligible for citizenship. This Article explores that decision, its context, and its consequences. It considers the radical promise of the Fourteenth Amendment’s text alongside the intentions of its Framers and the expectations of minority litigants. It situates Elk in a transformative period for both federal Indian policy and American federalism. The Article offers several readings of the Elk decision. It explores both the racist paternalism and the respect for tribal sovereignty evident in the Court’s reasoning, as well as the rapid shifts in Indian policy coinciding with Reconstruction. It ultimately argues that Elk v. Wilkins is emblematic of a distinct inflection point in federal Indian law, in which the Court’s formal adherence to longstanding principles of tribal sovereignty could simultaneously service federal assimilationist policy goals and a larger turn to American empire.

Nathalie Martin and Joshua Schwartz on the Implications of Tribal Payday Lending

Matthew L.M. Fletcher3 Comments

Nathalie Martin and Joshua Schwartz have posted their paper, “The Alliance between Payday Lenders and Tribes: Are Both Tribal Sovereignty and Consumer Protection at Risk?,” on SSRN. The paper appears in the Washington & Lee Law Review. Here is the abstract:

This article explores how tribal sovereign immunity is being used in the context of payday lending to avoid state law and explores the ramifications of this for both consumer-protection regulation and tribes. It discusses payday loans and tribal sovereignty generally, as well as tribal sovereign immunity, then discusses what might be done to address this consumer protection issue. More specifically, we discuss who in society has the power and resolve to dissolve this alliance, identifying tribes themselves, the Supreme Court, Congress, the Federal Trade Commission, and the Consumer Financial Protection Bureau as possibilities.

This is an important piece of scholarship from balanced scholars. Some tribal leaders and lawyers are thinking that payday lending is the new gaming for Indian country, but there seems to me that a certain amount of consent is missing in the way some payday lenders are behaving. I don’t think we saw the extent of bad faith in the early days of Indian gaming that we are sometimes seeing now with some of these tribal payday lenders. It’s important for Indian country as a whole to come together on this question as soon a possible, or else Congress will.

New Scholarship on Tribal Economic Development (and Solar Power)

Matthew L.M. Fletcher1 Comment

Ryan David Dreveskract will publish his article, “Native Nation Economic Development Via the Implementation of Solar Projects: How to Make it Work,” in the Washington & Lee Law Review (article here: Dreveskracht Article). It is also accessible on SSRN here. Here is the abstract:

This Article examines the issues surrounding sustainable economic development in American Indian country via the implementation of solar energy projects. Section II addresses Native American economic development, generally, focusing on Indian gaming, practical sovereignty, capable institutions, and cultural match. Section III discusses solar energy projects: the benefits of solar energy when compared to other types of energy production; the ways that these projects will benefit Indian country, specifically; and the rationale behind implementing solar energy projects as a means to sustainable economic development in Indian country. In arguing for the implementation of solar energy projects, Section III of the Article also provides instruction for the realization of these projects by tribes and state/federal regulatory/legislative bodies. Finally, having argued for and laid out a framework for economic development via solar projects, Section IV offers concluding remarks.

Student Author on Tribal Courts

Matthew L.M. Fletcher

R. Stephen McNeil, a law student at Washington & Lee, has posted “In a Class by Themselves: a Proposal to Incorporate Tribal Courts into the Federal Court System Without Compromising Their Unique Status as “Domestic Dependent Nations” on SSRN. Here is the abstract:

This Note proposes a solution to the longstanding problem of how to fit tribal courts into the existing federal court system. After setting forth the well-established problems with the current system, the Note discusses the various practical and constitutional problems with classifying Indian tribes as states, foreign nations, administrative agencies, or federal territories. Ultimately, the Note proposes a statutory scheme that is tailored to the unique situation of the Indian tribes by focusing on the competing goals of protecting tribal culture, maximizing tribal sovereignty, and protecting the rights of non-Indians from abuses in tribal courts.

Aside from the hanging modifier in the title, looks like a decent paper. I’m glad to see students from schools that aren’t known for teaching Indian law taking a stab at this field.