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Abstract:
This Article explores the impact of a same-sex marriage amendment on the place of Indian tribes in the federal constitution. A same-sex marriage amendment, depending on the text, might serve to incorporate Indian tribes into the federal union as the third sovereign. The Constitution has not been amended to incorporate Indian tribes into the federal union, rendering their place in Our Federalism uncertain and unpredictable. A same-sex marriage amendment that applies to limit or expand tribal authority to recognize or authorize same-sex marriage could constitute an implicit recognition of Indian tribes as the third sovereign in the American system of federalism. Even an amendment that excludes mention of Indian tribes may have something to say about Indian tribes as the third sovereign.

Indian tribe, constitutional law, same sex marriage, federalism, civil rights

Abstract:
Students of American Indian law cannot - and should not - escape from reading the three famous opinions of Chief Justice John Marshall that expounded for the first time in the halls of the United States Supreme Court the bases for federal constitutional common law - the opinions we now refer to as the Marshall Trilogy. These three decisions, Johnson v. M'Intosh, Cherokee Nation v. Georgia, and Worcester v. Georgia, identified the contours of American Indian law as they remain today in the modern era. These opinions are the house in which American Indian advocates, leaders, and policymakers rise each morning - and it is house filled with an iron cold of the deepest hour.

This essay is an attempt to reexamine the Trilogy for their continuing relevance to students of modern American Indian Law. The pedagogical value of the Marshall Trilogy goes far beyond the mere holdings of the cases. That is not to say the holdings are not significant - they are. But, as Justice Baldwin wrote in Cherokee Nation, the reasons for the holdings are more significant than the holdings themselves. The foundations of the current debates over plenary power, state authority in Indian Country, the special canon of construction for Indian treaties, implicit divestiture, the trust doctrine, the political status of Indians and Indian tribes, and others are all to be found within the Marshall Trilogy. For a new student of Federal Indian Law, these three cases are a microcosm of the entire course to come.

This essay reassesses the Trilogy using several methodologies of legal analysis, including legal history, law and literature (and mythology), and law and economics.

federal indian law, constitutional law, federalism, property, plenary power, legal history, law and literature, law and economics, equal protection, statutory construction, commerce clause

Abstract:
An entry in the forthcoming "Encyclopedia of American Civil Liberties" from Routledge. This entry provides an overview of the Indian Civil Rights Act of 1968, including a short discussion of the legislative history of the Act and a short summary of important federal and tribal court cases arising out the Act.

Abstract:
The Supreme Court's certiorari process is a barrier to justice for parties like Indian tribes and individual Indians. Statistically, there is a near zero chance the Supreme Court will grant a certiorari petition filed by tribal interests. At the same time, the Court grants certiorari in more than a quarter of petitions filed by the traditional opponents to tribal sovereignty, states. Why?

The Supreme Court has long maintained that the certiorari process is a neutral and objective means of eliminating patently frivolous petitions from consideration. This empirical study of preliminary memoranda drafted by the Supreme Court law clerk pool demonstrates the likelihood that the Court's certiorari process is neither objective nor neutral. Cert pool clerks overstate the relative merits and importance of petitions filed by states against tribal interests, while understating the merits and importance of tribal petitions.

In this study of more than 162 certiorari petitions filed between 1986 and 1994, a majority of petitions brought by state and local governments received favorable treatment from the cert pool while recommending denial in all but a single tribal petition, often labeling them "factbound" and "splitless." The impact of this weighted review of cert petitions is that a disproportionate number of state government petitions are granted while very few tribal petitions are granted.

Supreme Court, certiorari, Federal Indian Law, Indian tribes, cert petition, Supreme Court law clerk, cert pool, constitutional law, states' rights, federalism, treaty rights

Abstract:
Indian land claims have long been a foundational and fundamental subject of American law. Indians and Indian tribes have long been acutely aware that their land base has been shrinking since the beginning of the European invasion. Outnumbered, outgunned, and outbrutalized, Indians have had little choice but to recede. But Indians and Indian tribes have never forgotten their sacred homelands and continuously seek to restore whatever lands they can. This behavior, it seems, baffles non-Indian legal experts and legal philosophers, who argue that these "ancient" Indian land claims should be dismissed. Conversely, there are legal scholars who argue that the Indian rights to land are as absolute as to justify the restoration of vast amounts of land to Indian tribes. In short, there is a wide spectrum of choice for courts in relation to Indian land claims - courts can dismiss the claims altogether or restore the vast tribal land base or choose a middle ground.

Until recently, the courts have chosen a version of the middle ground, best exemplified by the Supreme Court's decisions in the Oneida Indian Nation's land claims. The federal courts might not approve of tribes suing hundreds or thousands of "innocent" landowners for eviction, but were willing to allow tribes to sue for trespass damages. The Second Circuit recently rejected this long-established middle ground in Cuygua Indian Nation of N.Y. v. Pataki and dismissed the Cuyuga Indian Nation's land claims based on the equitable doctrine of laches, relying exclusively on a recent Supreme Court case, City of Sherrill, N.Y. v. Oneida Indian Nation of N.Y.

This Article rejects the conclusions of the Second Circuit and argues instead that there is no principled reason to depart from the middle ground of earlier cases. We choose to begin by discussing tribal land dispossession from the point of view of the Indians who had been victimized by non-Indians. We discuss two instances of tribal land dispossession of the lands of the Michigan Anishinabeg that have yet to be remedied. These forms of tribal land dispossession are remedial under the middle ground of analyzing Indian land claims. We further discuss the origin of equity and its relationship to the law. We introduce the notion that laches is a powerful judicial tool subject to arbitrary and abusive exercise by the judiciary. We conclude our argument by asserting that laches is an improper judicial tool for resolving Indian land claims. We note that non-Indian defendants have long argued that Indian land claims should be barred by laches and, in the most persuasive cases, those defenses have been rejected. We argue that the underlying purpose of laches is not consistent with the exercise of laches by the City of Sherrill and Cuyuga Indian Nation courts. We conclude by lamenting that the dispossession of tribal lands has moved from the 19th century notion of brute force and the 20th century notion of corrupt political processes to the 21st century notion of final and complete judicial action to eradicate Indian land claims.

Abstract:
The literature discussing customary law, traditional law, tribal custom and tradition, and tribal common law in modern American tribal courts lacks a compelling theory of the role of custom in tribal court jurisprudence. There are some empirical studies of the use of custom in tribal law and more numerous papers describing custom in tribal law. Most of these studies are limited to a limited number of tribes, often just one, such as the Navajo Nation. Nearly all studies of support the use of custom in tribal law, with some arguing that custom preserves the cultures of Indian people and others arguing that custom provides a better methodology of delivering justice to participants in tribal court adjudication. But little or no scholarship provides an adequate theory as to why tribal courts should rely on custom, nor does this scholarship assist tribal courts in deciding which law to apply. This paper attempts to provide a theory for the role of custom in tribal court jurisprudence and to lay out the beginnings of a framework on how to find and apply customary law.

Indian, tribe, tribal court, customary law, jurisprudence, choice of law

Abstract:
This Article will demonstrate that virtually all elements of Indian affairs can be traced to the decision of the United States to recognize Indian tribes as political entities and to make Indian law and policy based on the political status of Indian tribes. Indian law is often assumed to be race law. As a result, observers tend to try to force Indian law into the constitutional race law paradigm. Justice Blackmun's footnote 24 in Morton v. Mancari - describing federal legislation and rules relating to Indian tribes as a political classification - hit upon the proper understanding of Indian law. The implementation of the rule of Johnson v. M'Intosh, Indian treaties, and Acts of the First Congress offers significant evidence that the original understanding of the Founders was that Indian tribes and the federal government enjoy a political relationship, not racial.

Abstract:
Entry for the Encyclopedia of American Civil Liberties, forthcoming from Routledge. This entry describes the case of Santa Clara Pueblo v. Martinez, decided by the Supreme Court in 1978. Martinez held that federal courts had no subject matter jurisdiction to hear cases arising out of the Indian Civil Rights Act and that the Act did not operate to waive the sovereign immunity of Indian tribes. While a strong statement from the Court affirming tribal sovereignty, the case's holding served to uphold the right of the Santa Clara Pueblo community to enact membership criteria that discriminated against the rights of female members of the community. The case has been both criticized and lauded by feminist legal scholars and Indian people.

Abstract:
This past August, while accepting the "Rule of Law" award from the American Bar Association, Justice Breyer proclaimed that our constitutional system "floats on a sea of public acceptance." At that time, Breyer's statements were meant to highlight his expectation that the Court will decide its cases following the "rule of law," and if not, that the American public would take to the streets to resolve their disputes. However, Breyer's statement, while demonstrative of his faith in the rule of law, does not always ring true. In fact, as I argue, the Supreme Court often decides its cases by ignoring, rather than following, the rule of law. This problem is particularly acute in the body of federal Indian law - which has cast a disastrous shadow on tribal interests. Tribes have lost about three-quarters of their cases before the Supreme Court since 1988. Yet, curiously, prior to 1988, tribal interests won slightly more than half of their cases. What changed? The result of this obfuscation, I show, is an unrelenting assault on tribal interests before the Court - and the rule of law more generally. Analyzing federal Indian law in this manner makes transparent the Court's frightening disrespect for the rule of law.

Abstract:
An entry for the Encyclopedia of American Civil Liberties, forthcoming from Routledge. This entry details the legislative history and the impact (or lack thereof) of the American Indian Religious Freedom Act.

Abstract:
This Article argues that tribal advocates should focus on the practical exercises of tribal sovereignty in a manner that the Supreme Court can understand and respect. This Article theorizes that the vessel of tribal sovereignty should be filled with the tangible reality of tribal law and tribal culture. Tribal law and culture are inextricably intertwined with tribal sovereignty. The Court respects internal tribal sovereignty but does not yet understand the link between tribal sovereignty and tribal law and culture. This Article theorizes that the Court will grant more deference to exercises of tribal authority if tribal advocates establish a link between tribal sovereignty and tribal law and culture.

Abstract:
Supreme Court doctrine bars tribal courts from exercising criminal jurisdiction over non-Indians, but tribal courts often are the only practical mechanism available to protect Indian women from non-Indian domestic violence. Congress recognized this fact in the Violence Against Women Act by noting that tribal courts may use their civil contempt power to enforce personal protection orders originating in foreign jurisdictions.

This short paper describes the civil contempt power of tribal courts, and how tribal courts have used this power. The paper concludes with a short analysis of the implications of federal Indian law on tribal court authority to issue civil contempt citations to non-Indians.

This is a paper prepared for the Michigan Indian Judges Association quarterly meeting, held on May 16, 2008, at the Bay Mills Indian Community.

tribal courts, federal Indian law, Violence Against Women Act, personal protection orders, domestic violence, due process

Abstract:
This study is an attempt to assess the validity of my theory that tribal courts do not apply "unusually difficult" laws in cases involving nonmembers. I theorized that in most cases (if not the vast, overwhelming majority), tribal courts apply a kind of "intertribal common law," which consists of the application of tribal statutes that mirror federal and state statutes and the federal and state cases that interpret them.

Of the 120 cases involving an ICRA issue, tribal court judges applied federal and state case law as persuasive (and often controlling law) in 114 cases (95 percent). And, of the six cases in which the tribal court explicitly refused to apply federal or state case law, either the parties involved tribal members in a domestic dispute or else the tribal court held that its interpretation of the substantive provisions of ICRA were stronger or more protective of individual rights than would otherwise be available in parallel federal or state cases.

tribal court, federal Indian law, Indian Civil Rights Act, customary law

Abstract:
In recent years, some legal, political, and cultural questions involving American Indians have begun to overlap - and conflict - with those of African Americans. The recent Cherokee Nation of Oklahoma's vote to strip the Black Freedmen of tribal membership generated allegations of racism and calls to force Indian tribes to comply with the Reconstruction Amendments sheds light on this question. This controversy highlights a serious problem in Indian-Black political and social relationships - the discourse of Black-White racism has begun to intrude into the discourse of American Indian law. The Reconstruction Amendments, federal civil rights statutes, and federal case law - all established as a reaction to Black-White racism - expresses important antidiscrimination principles that can conflict with the foundational elements of American Indian law: tribal sovereignty, the trust relationship, and measured separatism. To import the law of Black-White racism into American Indian law is to destroy American Indian law and, potentially, American Indian culture.

freedmen, interest-convergence theory, reconstruction, indian tribes, race, employment discrimination

Abstract:
This year, while accepting the "Rule of Law" award from the American Bar Association, Justice Breyer proclaimed that our constitutional system "floats on a sea of public acceptance." At that time, Breyer's statements were meant to highlight his expectation that the Court will decide its cases following the "rule of law."

However, Breyer's statement, while demonstrative of his faith in the rule of law, does not always ring true. In fact, as I argue, the Supreme Court often decides its cases by ignoring, rather than following, the rule of law. This problem is particularly acute in the body of federal Indian law - which has cast a disastrous shadow on tribal interests. Tribes have lost about three-quarters of their cases before the Supreme Court since 1988. Yet, curiously, prior to 1988, tribal interests won slightly more than half of their cases. What changed?

In this Article, I attempt to answer this question. I will show that the Court identifies important, unrelated constitutional concerns that arise often in Indian law cases - issues with which they and their clerks are familiar - and then decides those matters. Only afterward, and mostly as an afterthought, does the Court then turn to the federal Indian law questions. The Court's federal Indian law analysis takes a secondary and often inferior role.

The result of this obfuscation is an unrelenting assault on tribal interests before the Court - and the rule of law more generally. In this Article, I offer the first in-depth empirical assessment of the Supreme Court's recent Indian law decisions and argue in favor of a sweeping change in the means of analyzing Indian law. Instead of focusing on the Indian law questions, this Article shows how major Indian law cases were decided on other grounds to significant tribal disadvantage. Analyzing federal Indian law in this manner makes transparent the Court's frightening disrespect for the rule of law.

certiorari, rule of law, Supreme Court, federal Indian law, constitutional law

Abstract:
Tribal sovereignty is a story told by tribal leaders and advocates for decades to federal and state governments and courts. This story has led to significant political and economic gains for Indian people, but the story is getting old. While the pre-contact Indian communities relied upon storytelling to communicate important social norms, the conquest of Indian nations eviscerated that capacity. Indian people, in order to preserve the right to legal self-determination, must restore their own unique customs and traditions and incorporate those elements into modern tribal law. This paper analyzes four short stories by the renowned Spokane-Coeur d'Alene author, Sherman Alexie, stories about modern Indian people living in a world dominated by non-Indian culture and government. The paper highlights areas where new stories may inform tribal government choices as to tribal law and policy, including tribal membership and cultural property. Tribal law and sovereignty cannot exist in the long-term without reference to and a direct connection to the new stories of Indian people living today.

Abstract:
William Faulkner's short story, "Red Leaves," is a classic tale of cannibal, slave-and-plantation-owning Indians in the antebellum South. These Indians were figments of Faulkner's imagination that he used as a literary tool to critique the South - and perhaps America. But "Red Leaves" is also a tale of economic theory, with these fictional Indians making a serious effort (in a fantastical setting) to analyze slavery and cannibalism from an economic perspective. My paper, prepared for the 4th Annual Indigenous Law Conference at Michigan State University College of Law, argues that Faulkner's stark portrayal of Indian people offers both a means of reconsidering Indian affairs policy and critiquing the emerging use of the law and economics method of study to analyze and even decide Indian law cases.

Abstract:
Entry for the Encyclopedia of American Civil Liberties, forthcoming from Routledge. This entry summarizes the constitutional cases relating to the drug testing by the government of employees, school children, and others. The entry discusses the first companion cases of Skinner v. Railway Labor Executives' Association and National Treasury Employees Union v. Von Raab, Chandler v. Miller, and Veronia School District 47J v. Acton and Board of Education of Independent School District of Pottawatomie County v. Earls.

Abstract:
This Article brings forth the possibility that an American Indian tribe might legislate to prohibit the exportation and disclosure of Indigenous biological knowledge. Such legislation tends to implicate both the due process rights and free speech rights of tribal members and non-tribal members affected by such legislation. This Article, however, will focus on the implications of the freedom of speech concerns resulting from such a prohibition or restriction. The impact on free speech - as well as the tribe's justification for such restrictions or prohibitions - best brings forth the arguments on the merits.

Part I of this Article sets the table by defining what is meant by "Indigenous biological knowledge." That Part also provides examples on how that knowledge has been exploited by non-Indians in sometimes extraordinarily negative ways. Part II illustrates the legal regimes currently available for Indian tribes to prevent this exploitation and how these regimes generally fail to adequately protect Indians and tribes. Part III describes civil rights jurisprudence in Indian Country, with a focus on freedom of speech. Part IV discusses a few of the possible tribal law responses to prevent the exportation of Indigenous biological knowledge. Part IV also analyzes the free speech implications of these theoretical legislative solutions in the context of tribal constitutional law on free speech guarantees.

Tribal Law, American Indian Law, Freedom of Speech, Civil Rights, Constitutional Law, Comparative Law, International Law, Intellectual Property

Abstract:
This Article argues that cooperation between Indian and non-Indian governments will allow Indian tribes to expand their ability to self-govern, while meeting the needs of non-Indian governments frustrated by the limited application of state law in Indian Country. Intergovernmental agreement, a pillar of a strategy championed by those who advocate tearing down the "tyranny of the favored quarter" in metropolitan areas offers enormous potential to improve the efficient provision of local and regional governmental services, to preserve and expand the authority of tribal government, and to reduce the concerns of non-Indians that they might be subject to a tribal government.

Abstract:
This essay reviews the recent books Cash, Color, and Colonialism: The Politics of Tribal Acknowledgment by Renee Ann Cramer, and Forgotten Tribes: Unrecognized Indians and the Federal Acknowledgment Process by Mark Edwin Miller. This essay also provides an overview of the experiences of four Michigan Indian tribes who received federal recognition in the 1980s and 1990s either through the federal administrative process or through an Act of Congress.

This essay lauds the books for their depth of research on specific tribes and states, but argues that neither has developed a realistic theory as to the usefulness of the current federal administrative process. This essay argues that federal recognition is quintessentially political, despite the frequent ugliness of politics, and even necessary.

Abstract:
In two fields of constitutional law, the Supreme Court has acknowledged that the federal government may possess preconstitutional power, or national authority derived not from the Constitution but from the very fact of sovereignty. This Article analyzes the two areas of law - the Foreign Affairs Power and the Indian Affairs Power - and assesses their viability in future cases. The case recognizing a preconstitutional Foreign Affairs Power resting with the Executive branch, United States v. Curtiss-Wright Export Corp., suffers from poor historical reasoning and has little precedential weight in modern foreign affairs cases, but has never been overruled. The Indian Affairs Power case, United States v. Lara, decided in 2004, included no historical reasoning and only offered the theory as dicta. However, the Court raised the theory, perhaps, as a means of placating the textualists on the Court who do not view the Indian Commerce Clause as a viable source of Congressional power in Indian Affairs. This Article offers a best defense for the proposition that Congressional plenary power in Indian Affairs might derive from a preconstitutional source, a defense that includes the original understanding of the Indian Affairs Power and that, unlike the Foreign Affairs Power, did survive the ratification of the Constitution.

foreign affairs, war powers, enumerated powers, plenary power, indian law, curtiss-wright, lara, legal history, originalism

Abstract:
This Article discusses the tax agreement reached between several Michigan Indian tribes and the State of Michigan. Federal Indian Law creates numerous jurisdictional problems regarding the imposition of state taxes in Indian Country. This Article discusses the economic and legal interests of both the tribes and the State in regards to the taxes covered in the agreement: sales and use tax, income tax, Single Business Tax, tobacco products tax, and motor vehicle fuels tax. The Article describes the administration and enforcement provisions in the tax agreement, as well as how the taxes will be applied or exempted.

Federal Indian Law, Tribal Law, Comparative Law, Taxation

Abstract:
This Article focuses on the actions of the federal agencies that do not appear on the radar screen - often because no cause of action exists to allow the tribes to bring suit in federal court to force the government to enjoin their actions - or because federal law operates to limit tribal sovereignty. Part II of this Article discusses four case studies - the story of the Grand Traverse Band of Ottawa and Chippewa Indians' struggle to retain its right to determine its own membership requirements; the Saginaw Chippewa Indian Tribe of Michigan's response through its tribal court of appeals to federal intervention in a tribal election dispute; the erosion of tribal rights to restore lost land and expand economic development opportunities; and the continuing impact of the Bureau's sales of Indian land without Indian consent. Part III places these case studies in the broader context of how federal bureaucratic actions have rendered meaningless critical aspects of self-determination. This portion of the Article argues that meaningful self-determination requires bureaucratic acknowledgement that Indian tribes retain the exclusive right to determine membership; that Indian tribes must be allowed to decide internal disputes without any interference from the federal government; that Indian tribes must be allowed to restore the land base to a critical mass of land for each tribe in order to allow for adequate economic development activities; and that Indian tribes retain a right to a remedy for the past violations of law of which they are a victim and that, finally, Indian tribes have a right to a competent trustee. The Article concludes in Part IV with a bleak vision, describing areas of critical tribal interest in which the federal bureaucracy is likely to maintain its paternalistic and colonial attitudes. Nevertheless, much of what ground has been lost can be regained with a simple change toward recognition of principles of self-determination on the part of the federal bureaucracy.

Abstract:
America Indian culture and traditions have survived an unusual amount of oppressive federal and state educational policies intended to assimilate Indian people and destroy their cultures and languages. Yet, Indian culture, traditions, and people often continue to be treated as objects in the classroom and in the curriculum. Using a critical race theory framework and a unique counternarrative methodology, American Indian Education explores a host of modern educational issues facing American Indian peoples - from the impact of Indian sports mascots on students and communities, to the uses and abuses of law that often never reach a courtroom, and the intergenerational impacts of American Indian education policy on Indian children today. By interweaving empirical research with accessible composite narratives, Matthew Fletcher breaches the gap between solid educational policy and the on-the-ground reality of Indian students, highlighting the challenges faced by American Indian students and paving the way for an honest discussion about solutions.

American Indian Law, education law, critical race theory

Abstract:
A critical area of American Indian law is the resurgence, restoration, and development of tribal law in Indian Country. Some tribal law is borrowed or transplanted, while other tribal law is based on custom and tradition, but the ultimate purpose of developing a body of law that parallels Anglo-American law is the preservation of American Indian culture. Leech Lake Ojibwe David Treuer's recent book of literary criticism, "Native American Literature: A User's Guide," offers a startling premise that reaches far beyond literature - American Indian literature that borrows from Anglo-American literary traditions is nothing more than a "copy" of Indian culture. As such, the celebrated works of authors such as Louise Erdrich, James Welch, and Sherman Alexie cannot and never will be Indian culture. However, modern tribal law also cannot and will not ever be anything more than a "copy" or replica of pre-contact tribal legal traditions. Treuer's condemnation of modern American literature would appear to serve as a condemnation of modern tribal law as well. However, H.L.A. Hart's theories about how fundamental community traditions become specific legal rules alongside historian Richard White's work regarding how tribal culture adapted to Anglo-American contact in the 17th and 18th centuries serves as an effective rejoinder to Treuer's theory of Indian culture. Indian culture, whether expressed as literature or tribal law, adapts in order to survive.

H.L.A. Hart, Sherman Alexie, James welch, Louise Erdrich, Ojibwe, David Treuer

Abstract:
Is federal Indian law dead? Despite a declining docket during the Rehnquist Court, the Supreme Court continued to take a disproportionately high number of Indian law cases - and deciding more than 75 percent of them against tribal interests. While many scholars suggest that the Court's conservative views drive these Indian law decisions and criticize the Court for failing to follow foundational principles of federal Indian law, this Article asserts that the Court's reasons for granting certiorari and for deciding against tribal interests in these cases are not Indian law-related. Instead, the Court identifies important, unrelated constitutional concerns that appear to arise more frequently in Indian law cases, decides those matters, and only then turns to the federal Indian law questions. Once the Court disposes of the important constitutional concern in its analysis, the Court's federal Indian law analysis is secondary and often driven by pragmatism. This Article concludes by arguing that advocates for tribal interests must locate an important constitutional concern or a significant pragmatic consideration that will drive the Court's analysis before they will turn around the win-loss ratio.

supreme court, agenda, indian law, constitution, certiorari, pragmatism

Abstract:
This Article discusses the difficulty of employment separations in Indian Country. The central premise of this Article is that Euro-American law and jurisprudence is uniquely unsuited to Indian Tribes and Tribal Courts. The result of the implementation of employment separation law and jurisprudence by Tribes and Tribal Courts is unnecessary litigation and emotional suffering. Part I of this Article describes the characteristics of employment with Indian Tribes and Tribal organizations. Tribes are usually close-knit communities that generally employ a significant percentage of Tribal Members. Part II describes the legal structures required by the Euro-American legal system as imposed on Indian Tribes and considers how these structures create significant legal problems for the Tribes and social problems for the Indian communities. Part III analyzes the Tribal law of sovereign immunity as it applies to lawsuits by discharged employees in Tribal Courts. Part IV proposes the reduction of harms associated with employment separations. Since most Tribes have adopted significant portions of Euro-American law and jurisprudence, a blanket restructuring of Tribal legal systems would be extremely difficult. This proposal cuts through much of problems associated with adjudicating Tribal employment separation disputes.

Abstract:
Courts and scholars refer to the substantive common law applied by tribal courts in the United States using the monolithic term tribal common law, but in fact tribal common law can and should be subdivided into two major categories of law - intertribal common law and intratribal common law. Intertribal common law is the common law applied by tribal courts to cases arising out of Anglo-American legal constructs, such as employment contracts or housing leases. Intratribal common law is the common law applied by tribal courts to cases arising out of indigenous legal constructs, such as family and inheritance rules or land use rights. Intertribal common law tends to mirror state and federal common law, while intratribal common law derives from the unique and often unwritten tribal customs and traditions. Almost by definition, intratribal common law does not and cannot apply to disputes involving nonmembers.

Several Supreme Court Justices have commented that tribal courts should not have civil jurisdiction over nonmembers for disputes arising in Indian Country because the application of tribal substantive law may be, in Justice Souter's words, unusually difficult for an outsider to sort out. This concern is misplaced. Tribal courts resolve disputes involving nonmembers by applying an intertribal common law that is consistent with the manner in which state and federal courts resolve disputes. Because the costs to tribal cultures and people in restricting tribal court jurisdiction is much higher than recognizing tribal court jurisdiction, the Court should recognize the difference between these categories of tribal common law.

American Indian Law, Constitutional Law, Comparative Law, Jurisprudence

Abstract:
State governments have long been described as the "deadliest enemies" of Indian people and Indian tribes, even with now-Chief Justice Roberts famously reversing the description in a 1997 Supreme Court brief to describe Indian tribes as the perpetrator - the "dead[ly] enemies" of states. The Constitutional common law rule resulting from this description prevents states from engaging with Indian tribes absent Congressional consent. But this view of tribal-state relations dates back to the first 100 years of American Constitutional jurisprudence and Indian affairs, when states and Indian tribes engaged in oft-horrific and genocidal violence. The "deadliest enemies" model of tribal-state relations has long passed and transformed into political and legal disputes. Outside of litigation, these disputes often are resolved via intergovernmental agreement. However, the bright-line rule resulting from the "deadliest enemies" model operates as a barrier to the development of peaceable tribal-state relationships. This short Essay argues for the retirement of the "deadliest enemies" model.

indian law, federalism, intergovernmental agreement, John G. Roberts, kagama

Abstract:
This article discusses the lack of a reservation tax base upon which tribes can use to fund government services. Federal, state, and local governments have a tax base upon which to draw but federal Indian law has developed in such a manner to substantially eliminate a tax base for Indian tribal governments. The tribes' only option is to raise revenue in other ways, particularly economic development. But there are significant difficulties with establishing a predictable revenue stream through tribally owned businesses. First, tribal governments must overcome structural hurdles to financing that non-Indian local governments do not have to face. Second, non-Indian business owners object to tribal government's so-called ability to market their tax exemptions. Third, there is underway a significant backlash against Indian gaming. Fourth, tribal governments are not for-profit corporations and may be restricted in their abilities to cut unprofitable businesses and otherwise operate profitable businesses. Fifth, there are fundamental philosophical, legal, and political problems for tribal governments operating businesses on the reservation. While there are possible remedies for this situation, such as the so-called "Hicks fix," a more plausible solution would involve relatively minor changes to the Tribal Tax Status Act or a minor change in the way courts view tribal businesses - as non-profit organizations rather than for-profit companies.

Federal Indian Law, Community Economic Development, Tribal Law

Abstract:
Federal and state statutory and regulatory protections do not appear to be the answer to preventing the calamity ongoing in the waters of the Great Lakes. To fill in the gap, environmental advocates and scholars devote much of their attentions to the public trust doctrine, first articulated in this context by Joseph Sax. There is little attention devoted to the insights of Indian tribes or the potential legal benefits of invoking Indian treaty rights. The Supreme Court has long affirmed the supremacy of Indian treaty provisions and, while the Court's interpretation of some treaties has been cramped at best, the Great Lakes and Pacific Northwest treaties have been interpreted in a manner that suggests there is room to provide for protection of major water bodies.

We propose to incorporate Indian treaty jurisprudence into the strategy for saving the Great Lakes. The interests of the parties tend to be the same - the preservation of the resource. Indian treaties negotiated by Indian peoples that relied on water as a means of survival - economic, cultural, and political - provide a potential (and as yet untested) legal tool for the preservation of major water bodies such as the Great Lakes.

Indian, tribe, treaties, environmental law, Great Lakes, water, conservation, public trust, critical race theory

Abstract:
In this article, I identify a disconnect between the national policy relating to Indian affairs as established by Congress and the Executive branch and as interpreted by the Supreme Court. The Court recently decided a case called United States v. Lara, which involved an attempt by Congress to reign in the Court's common law jurisprudence relating to tribal criminal jurisdiction. What makes this case unusual was that some Members of the Court, as well as a large body of federal Indian law scholars, cannot find textual support for Congress's actions relating to tribal affairs and explicitly question whether Congress has any authority at all in this area. Though the Lara Court upheld the Act of Congress at issue, four Members of the Court (excluding Justice O'Connor) either dissented or ruled in favor of the United States solely because of a procedural technicality. In short, very little was decided in Lara.

My article proposes a test whereby the Court follow a suggestion made by Justice Thomas (one of the four) to ignore Congress's legislation relating to tribal affairs, which may or may not be constitutionally authorized, but to focus instead on the explicit statements of federal Indian policy. This test avoids the constitutional questions while providing the Court a relatively simple means to decide its Indian cases. As Indian cases on tribal jurisdiction and taxation authority reach the Court in disproportionate numbers, this article should sharpen discussion on a frequently misunderstood area of constitutional law.

Abstract:
Congress enacted the Indian Child Welfare Act, it said, in accordance with its authority under the Indian Commerce Clause and because it has assumed responsibility over Indian affairs. But under the line of cases developed by the Rehnquist Court, the Court takes a very dim view of Congressional authority under the Commerce Clause, while resurrecting the Tenth Amendment from its stasis as a "truism." At least one Justice asserts that there is nothing in the Constitution that authorizes Congress to assume authority over Indian affairs to the exclusion of the Executive branch or the states. This paper argues that, despite the Court's recent Commerce Clause jurisprudence, Congress had sufficient authority to enact the Indian Child Welfare Act. The intent of the paper is to present the strongest case for the constitutionality of the Indian Child Welfare Act as a matter of the original understanding of the Indian Commerce Clause.

Abstract:
Indian gaming is headed in a direction that benefits neither tribes nor states. Tribes and states are caught in a prisoner's dilemma, with no side trusting the other and Congress refusing to see the forest for the trees. Tribes and states are in need of a vision and a simple legislative fix that benefits both sides and cuts right to the heart of the imbalance in IGRA.

The solution to these salient political issues is not piecemeal legislative efforts initiated in response to these alleged problems. These problems are symptoms of an imbalance in the overarching federal statutory scheme - IGRA. The Act created a balanced and careful relationship between Indian tribes (and to a lesser extent, the federal government) and the various states. The crux of that statutory scheme was a Congressional waiver of state sovereign immunity that allowed Indian tribes to sue the states and force their governors to negotiate with tribes over gaming compacts. The Supreme Court, however, in Florida v. Seminole Tribe of Florida, obliterated that balance in favor of the sovereign immunity of the states. This paper will show how the alleged problems relating to off-reservation gaming, tribal lobbying matters, taking of land into trust for gaming purposes, and the regulation of Indian gaming that attract Congressional attention can be traced back to that moment when the Court ruptured the balance.

Indian tribes and the federal government took several steps in order to alleviate the negative impact of Seminole Tribe on Indian gaming. Indian tribes and the states began to negotiate broader revenue sharing agreements, a process some have labeled extortion of Indian tribes by states. Concurrently, the federal government, specifically the Secretary of Interior, proposed an administrative fix to the Seminole Tribe problem that would allow the Secretary to promulgate Class III gaming procedures for tribes that do not have the opportunity to negotiate a gaming compact. The Congressional agenda evidenced by the Senate Committee's hearing schedule and the subject matter of the various bills being debated amounts to looking at the question of Indian gaming in a superficial and inefficient manner. The origin and the core of the disputes between tribes, tribal constituents, states, state constituents, private economic interests, and the federal government is the fact that IGRA is unbalanced. The Congressional agenda ignores an elephant in the room, one that neither states nor Indian tribes wish to litigate or even discuss. That issue is whether revenue sharing agreements contained in gaming compacts are valid in accordance with IGRA. These revenue sharing agreements are the creaky bridge between the states and the tribes that operates as the de facto Seminole Tribe fix. In short, many Indian tribes have agreed to pay the states a portion of their net win in exchange for a favorable gaming compact. The critical weakness in this plan is the fact that IGRA prohibits state taxation of Indian gaming revenues.

This paper proposes a legislative fix to IGRA that would validate both the current revenue sharing agreements and the administrative solution to Seminole Tribe. The proposal would provide all sides with a significant win-win opportunity. Moreover, this proposal avoids the constitutional jaws of the federal courts that sunk the original intent of IGRA by offering the choice to states to waive their immunity. Unlike most other proposals or analyses designed to fix IGRA proposed by legal commentators, this proposal is salable as a matter of real-world politics and is a practical solution to real-world problems. This paper's legislative proposal is neither wishful thinking nor comprised of pie-in-the-sky arguments. It is a pragmatic view of the state of modern Indian affairs on the controversial and enormous issue of Indian gaming. It proposes legislation that recognizes the governmental parties affected by Indian gaming, provides benefits to all of them, and preserves Indian gaming in the long-term by strengthening the operative statute.

Abstract:
This Article argues that federal and state courts tend to shortchange Indian Tribes and Tribal sovereignty in their application of the compulsory joinder rule. It is apparent that state and federal courts treat the sovereign immunity of the states and federal government with more deference than the immunity of Tribes. At least one court has trumpeted Supreme Court dicta for the proposition that Tribal immunity is an insignificant factor. However, immunity is immunity. Using procedural rules to qualify or abrogate the immunity from suit of a sovereign is an egregious abuse of discretion. Surely, the rules of procedure are not intended to operate a backdoor mechanism for the waiver of a sovereign's immunity from suit.

Federal Indian Law, Civil Procedure, Litigation, Constitutional Law, Indian Gaming

Abstract:
At least 30 major colleges and universities continue to utilize Indian mascots, team names, and other signifiers to promote their athletic teams. Individual Indians, Indian tribes, and other activists argue that this usage is racist and unnecessary. In this piece, the author uses fiction to demonstrate the grassroots effects of the uses of Indian symbols to promote college and university sports.

In a related vein, the author shows in the story how racism in local and private relationships appears and effects minority communities - and the difficulty in remedying that racism.

Abstract:
In this piece, the author uses fiction to tell the stories of individual Indians who are members of the Michigan Indian tribes, particularly the Grand Traverse Band of Ottawa and Chippewa Indians, through the legal history of the Grand Traverse Band from treaty times to present day. The narrative is an amalgamation of five interrelated short stories featuring five different characters. The author incorporates historical events into the narrative, supported by references and quotations to tribal ethnohistories, trial transcripts, treaty language, and case law and legal scholarship relating to the tribe and federal Indian law generally. The author intends to show how federal Indian law directly impacts the lives of American Indians. The piece is based on the stories told by the author's family and friends - reservation and urban Indians, educated and non-educated Indians, and young and old Indians.

Federal Indian law, law & literature, law & humanities, legal history, law & anthropology

Abstract:
There are extra-legal barriers that American Indian people faced when confronted with the illegal theft of their lands, or with any dispossession of their lands. Indian tribes and Indian people faced numerous practical barriers to bringing land and treaty claims prior to the modern era, including without limitation: (1) lack of financial resources; (2) lack of knowledge and sophistication about the American legal system; (3) demoralization; (4) lack of a clear and authorized tribal governmental plaintiff; and (5) government interference and control over tribal affairs.

For Indian tribes pursuing a remedy for these claims, there is a significant defense raised - why didn't the tribes or the Indians bring these claims before? Since the Supreme Court decided Sherrill v. Oneida Indian Tribe, the equitable defense of laches has been raised by states, local units of government, and property owners against the tribal claims with frightening success rates. The defense is superficially compelling in large part because the practical reasons for failing to bring suit decades sooner might not be considered excusable.

In a pending case, Oneida Indian Nation v. County of Oneida, the National Congress of American Indians attempted to flesh out the practical barriers to tribal land claims in an amicus brief. This short Essay attempts to add to that research. But the ultimate purpose of this Essay is to call for serious empirical research on this difficult question - why didn't Indians and tribes file suit to vindicate their rights to land?

Abstract:
Laughing Whitefish, a novel by Robert Traver, the pen name of former Michigan Supreme Court Justice John Voelker, is the fictionalized story of a case that reached the Michigan Supreme Court three times, culminating in Kobogum v. Jackson Iron Co., 43 N.W. 602 (Mich. 1889). The petitioner, Charlotte Kobogum, an Ojibwe Indian from the Upper Peninsula of Michigan, brought suit to recover under a note issued to her father, Marji Gesick, by the mining company in the 1840s. The company had promised a share in the company because he had led them to one of the largest iron ore deposits in the country, the famed Jackson Mine. Despite the company's defense that Mr. Gesick was a polygamist and therefore Ms. Kobogum could not be his legitimate heir, the Michigan Supreme Court held that state courts had no right to interfere with internal, domestic relations of reservation Indians, and upheld the claim. Justice Voelker's tale is a powerful defense of the decision, and offers insights into why state courts should recognize the judgments of tribal courts even today.

Indian tribe, customary law, polygamy, law and literature, Robert Traver

Abstract:
In this article, I utilize Native American literature combined with Indian law commentaries to analyze the impact of the return of American Indians trained as lawyers to tribal communities. I use the analogy of the Indian abductee in Native American literature. The Indian abductee, one who is abducted (or voluntarily leaves) a tribal community and eventually returns to the community with special or even supernatural gift, parallels the journey that many American Indians take while leaving their homes to attend college and then law school.

Indian lawyers returning to tribal communities face a strange contradiction. On one hand, tribal communities often have sent them out in order to become legal sovereignty warriors. But on the other, they sometimes face hostility from their own communities. Similarly, the Indian law scholars sometimes vilify Indian lawyers for strategic decisions that they perceive constitute a compromise of tribal sovereignty.

I hope to open up a debate about these issues. My thesis is that Indian legends and stories have predicted this reaction and may even provide an avenue for a resolution consistent with tribal customs and traditions. Finally, I strongly support the actions and experiences of Indian lawyers.

Abstract:
The national debate on Indian gaming focuses on the question of off-reservation gaming and other symptoms of an imbalance in the law and politics of Indian gaming. Reform of the law of Indian gaming should focus on the underlying structure of the law of Indian gaming rather than the symptoms.

This Article proposes to codify the revenue sharing agreements already implemented, assuming the tribe consents; mandate all future casino-style gaming compacts include revenue sharing; and codify the Secretarial procedures designed to reestablish the enforcement mechanism. This proposal would cement the on-the-ground reality of Indian gaming that tribes and states have relied upon since 1996. Too much is at stake to reopen the Act. Moreover, this proposal cuts to the heart of the imbalance in Indian gaming, not to the symptoms.

Abstract:
This research paper, prepared for the 2009 Federal Bar Association Annual Indian Law Conference, offers a comprehensive overview of the law of tribal official immunity in federal courts. Federal courts apply the Ex parte Young doctrine to tribal officials. Tribal officials tend to be immune from suit in federal court unless a plaintiff alleges a violation of federal law and there is an independent federal court cause of action. Tribal officials are immune if the plaintiff alleges a violation of tribal law, or otherwise merely seek to reach the tribal coffers.

tribal official immunity, Ex parte Young, official immunity

Abstract:
State and federal courts increasingly are being confronted with prosecutors moving the court to consider prior convictions in American Indian tribal courts during the sentencing phase, and sometimes earlier. If the conviction being introduced occurred in state or federal court, the instant court would be obligated to give full faith and credit to that conviction. But if the prior conviction occurred in a tribal court, state and federal courts are often confronted with unforeseen complexities. This paper is intended to parse through much of the political baggage associated with recognizing tribal court convictions. To be frank, the law is unsettled, leaving little guidance for state and federal judges in these cases, while at the same time granting enormous discretion to judges on the questions involved. The first part of this paper will provide a quick overview of the constitutional status of Indian tribes and tribal courts, as well providing a basic but sufficient introduction to relevant principles of federal Indian law. The second part will offer a summary of criminal jurisdiction in Indian Country and, in particular, what role tribes play – and how well they play it. The third part offers a short description of the key cases in the field, as well as relevant federal and state statutes, and state court rules. It also offers a short normative argument on the question of what state and federal court judges who are confronted with prior tribal court convictions should look for in these cases, especially where the defendants convicted in tribal court are not represented by counsel.

tribal court, federal sentencing, Indian Country, federal Indian law, uncounseled convictions, right to counsel

Abstract:
The history of the conquest of the indigenous peoples of the Western Hemisphere, and especially those of North America, is well documented in the academic language of historians, political scientists, sociologists, and lawyers, but these histories end with the final dispossession of lands from Indians and Indian tribes. Despite more than five centuries of conquest, Indians and Indian tribes struggle on in the modern era, mostly surrounded by non-Indians, many of them politically and socially hostile. The stories of the conflicts that arise from the continuing interaction between Indians and non-Indians are usually told from the perspective of the non-Indians. Rarely are the voices of Indians heard. As more and more Indians and Indian tribes succeed, the outcry from non-Indians demanding becomes louder.

This Article is the fictional narrative of a grade school founded by an Indian tribe for the purpose of educating Indian students in an all-Indian setting with an all-Indian faculty. When the school becomes first a modest, then a spectacular, success, non-Indians slowly and insidiously take over the school for their own purposes, educating non-Indian students. The story is an allegory of the conquest of the Western Hemisphere by Euro-Americans.

American Indian law, federal Indian law, tribal law, tribal economic development, education, law & literature, law & humanities

Abstract:
This research paper, prepared for the University of Colorado/Denver University symposium Native Americans, Race, and the Constitution, offers an overview of the law relating to pushing the envelope - or seeking to extend or curb federal Indian law doctrines - without entering the territory of filing sanctionable frivolous claims under FRCP 11 and Federal Appellate Rule 38. This research covers cases in which attorneys and parties faced sanctions for failing to properly alleged federal court jurisdiction in Indian law cases, bringing frivolous appeals, and relitigating tribal claims again and again. The research suggests ways to bring claims for law reform in good faith.

Rule 11, Appellate Rule 38, frivolous claims

Abstract:
Every American Indian person - repeat, every American Indian person - is related to or knows someone or is someone who has been adopted out of or removed from their reservation family. A significant percentage of each recent generation of American Indian people has grown up among strangers, either adopted by non-reservation families or force-fed through a state foster care system. This is, of course, one of the fundamental issues Congress hoped to address when it enacted the Indian Child Welfare Act in 1978. This fictional narrative is my take on what it means for an Indian person to lose their family - and to regain it much, much later.

Indian Child Welfare Act, short story, fiction, federal Indian law

Abstract:
This short paper prepared for the 2009 Federal Bar Association’s Annual Meeting offers preliminary results of a study of the OSG in the Supreme Court from the 1998 through the 2008 Terms. I study the OSG’s success rates before the Court in every stage of litigation, from the certiorari process, the Court’s calls for the views of the Solicitor General, and on the merits of the cases that reach final decision after oral argument.

The paper begins with the preliminary data on the OSG’s success rate in Indian law cases. The data demonstrates that the OSG retains its success rate in both the certiorari process and on the merits when the United States is in opposition to tribal interests. But when the OSG sits as a party alongside tribal interests, and especially when the OSG acts as an amicus siding with tribal interests, the OSG’s success rate drops dramatically.

The purpose of this study is to help determine reasons for the very low success rate before the Supreme Court achieved by tribal interests in the past two or three decades. Taken in the greater context of other studies conducted on this phenomenon, the evidence that the Supreme Court has a significant and irrational animus against tribal interests is growing.

Supreme Court, Solicitor General, certiorari, Indian tribes, Federal Indian Law, amicus brief, oral argument

Abstract:
The pre-American trading centers of the Great Lakes - Sault Ste. Marie, Michilimackinac, and Detroit - developed as natural manifestations of economic activity involving the Indigenous peoples of the region, as well as the French, the British, and lastly the Americans. In many ways, during that period, the Indian people controlled these markets. As history turned against the Indians, the Europeans acquired control of these markets. The federal Indian law and policy manifestation of this control can be explained in the phrase "measured separatism." While measured separatism had value for Indian and American communities for a time, as well as serious disadvantages, the need Indian law controls over the market has receded to a significant extent. The recent limitations on off-reservation gaming are manifestations of this measured separatism. These controls should be a call for tribal business interests to drop some of their reliance on federal Indian law, which creates some economic advantages, and re-enter the larger economic world.

Schumpeter, Indian Gaming, Great Lakes

Abstract:
This paper is prepared for the University of Michigan Law School Native American Law Students Association's annual Indian Law Day, April 10, 2009. The materials in this paper derive from an early draft of an amicus brief filed by the American Indian Law Section of the State Bar of Michigan in the Michigan Supreme Court case, In re Lee. The paper focuses on the legislative history of the Indian Child Welfare Act, with particular emphasis on Michigan.

Indian Child Welfare Act, legislative history

Abstract:
This paper, prepared for the Michigan State Bar's American Indian Law Section annual program, provides an update of major cases decided nationally on Indian Child Welfare Act questions.

Indian Child Welfare Act, existing Indian family exception, ICWA