William Wood

Bill Wood on the IRA’s “Under Federal Jurisdiction” Provision

Matthew L.M. Fletcher1 Comment

William Wood has published Indians, Tribes, and (Federal) Jurisdiction in the University of Kansas Law Review.

Here is an excerpt:

I argue that, doctrinally, all Indian tribes currently recognized as such by the U.S. government—all “federally recognized tribes”— necessarily were under federal jurisdiction in 1934. Under the doctrine of discovery (or discovery doctrine), the United States, like the European powers that preceded it, asserted jurisdiction regarding the Indigenous peoples within its claimed territories and assumed certain obligations to those peoples. As it developed this doctrine into the plenary Indian affairs power doctrine (or plenary power doctrine), the Supreme Court explained that the federal government had since its inception possessed this plenary jurisdiction regarding all Indians within the United States’ boundaries. It was part of the colonial relationship: because the United States claimed sovereignty over their territories, the Indians living there fell under the federal government’s jurisdiction.

American University Law Review Article on Tribal Sovereign Immunity

Matthew L.M. Fletcher1 Comment

Here. By Bill Wood.

In its latest pronouncement on the subject, the Supreme Court suggested in Kiowa Tribe of Oklahoma v. Manufacturing Technologies that tribal sovereign immunity is an accidental doctrine that developed with little analysis or reasoning. The Court, however, overlooked important history, context, and (some of its own) precedent which shows that the doctrine arose quite intentionally through relationships negotiated across centuries between the United States and the Indian nations involved in the foundational tribal immunity cases. Indeed, the doctrine’s origins and the principles underlying it date back as far as those for the federal, state, and foreign governments’ immunities, and, historically, the reasoning and justifications for these doctrines are the same. Although the Kiowa Court upheld tribal immunity, it did so grudgingly and only after disparaging its own precedent, misconstruing the doctrine’s origins, questioning whether to perpetuate it, and inviting Congress to abrogate it. In the wake of Kiowa, other courts have seized upon the Supreme Court’s marginalization of tribal immunity to limit the doctrine’s scope in cases where they do the job Kiowa said was for Congress and weigh the competing policy interests at stake. Perhaps unsurprisingly, these courts use Kiowa’s discrediting of tribal sovereign immunity’s legitimacy to tip the balance against tribal immunity. This article tells the real story of tribal sovereign immunity, providing doctrinal perspective and historical clarity in order to correct the misunderstandings about tribal immunity’s origins, development, and purposes.