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Abstract:
In recent challenges to the historical and contemporary use of banishment in American Indian societies under the habeas corpus provision of the Indian Civil Rights Act (ICRA), traditional tribal customs and practices, which have weathered the test of time and have ensured the tribe's political and cultural survival, are being pitted against the rights of individual tribal members to fairness in their dealings with the tribe - rights in the modern era of Indian law defined in terms of constitutional-like due process protections under the ICRA. Federal courts are arbiters of these internal conflicts, wrestling with the contours of federal jurisdiction to review tribal decisions and decision-making processes, and to define an individual tribal member's due process rights under ICRA's habeas corpus provision. These issues are closely examined in Banishment as Cultural Justice in Contemporary Tribal Legal Systems.

This is a post script on that article, prompted by a federal court decision in Quair v. Sisco (Quair II), rendered contemporaneously with the publication of that article, in which the court re-assessed its own jurisdiction to review tribal banishment and enrollment decisions and adopted an analysis that mirrors the construct proposed in Banishment as Cultural Justice. The court also established new elements of habeas corpus review under the ICRA. This postscript analyzes the ramifications of the Quair II decision, and concludes that the comity model, as proposed in Banishment as Cultural Justice, and as mirrored in Quair II, is the appropriate framework for the review and resolution of tribal disputes arising from banishment decisions because the comity model follows tribal notions of respect for fairness and individual dignity.

due process, sovereignty, Indian law, exhaustion of remedies, comity

Abstract:
In the midst of faltering economies and raging poverty, American Indians in South Dakota have the nation's lowest life expectancy, as well as some of the highest infant mortality and teen death rates. Furthermore, Indians are over-represented in significant numbers in every part of South Dakota's welfare programs and criminal justice systems. What appears to have been missing throughout all these years is some meaningful discussion among State policymakers and tribal leaders about the correlation between the pervasive negative experience of American Indians in South Dakota, a birth to grave continuum, and restrictive and unsupportive state governmental policies. Through a close examination of demographic information about American Indian populations in the nation, with a particular focus on Indian communities in South Dakota, and of three recently issued state reports concerning the gross disproportionate over-representation of Native Americans in South Dakota's juvenile justice, adult criminal justice, and the child welfare systems, this Article calls for a serious assessment of these critical issues in light of the State's faltering social welfare and criminal justice systems relative to American Indians and tribal communities.

poverty, discrimination, child welfare, juvenile justice, minorities, Indian law

Abstract:
Today, tribes throughout the country stand at the intersection of two major political and economic forces, either of which possesses the intensity to relegate time-honored principles of tribal sovereignty to mere federally-ordained dictates. The first is the U.S. Supreme Court's inclination to reshape the contours of tribal sovereignty by abandoning a formalistic adherence to these foundational principles of federal Indian law for a more functional approach involving a complex balancing of state and tribal political interests, with the scale tipping more frequently in favor of the state's interests, or at least against the tribe's interests. The second is the current global economic crisis and its repercussions on tribal economies. Many tribes already have suffered a backlash from the failing economy and more tribal economies undoubtedly will be debilitated by severe pressures on the federal budget. Such scarcity of resources raises somber questions about the possible diminishment in federal responsiveness to tribal needs.

tribal sovereignty, sovereign immunity, Indian law, economics, governance

Abstract:
A recent study by the University of Connecticut Center for Economic Analysis credits the Mashantucket Pequot Tribe and Foxwoods with creating 41,000 jobs and adding $1.2 billion to Connecticut's economy.

This enormous operation is managed by an exceptionally experienced team of casino executives, most of whom have come to Mashantucket from Las Vegas and Atlantic City. The paramount authority over the gaming enterprise is the Mashantucket Pequot Tribal Council, the seven-member governing body of the tribe, whose ultimate responsibility is for the health and well being of its membership, employees, and patrons.

A sound economy is a fundamental building block for any society. Tribes that are progressing forward economically and socially are assertively exercising their sovereign rights of self-governance. Indeed, one of the most important and visible expressions of tribal sovereignty is the rule of law established by tribal constitutions, tribal law and order codes, and tribal court decisions. This in and of itself engenders issues of ambiguous jurisdiction and often hostile opposition to the exercise of tribal sovereignty.

Based on my work throughout Indian country and for the past several years with the Mashantucket Pequot Tribe, I see four primary areas where the exercise of tribal sovereignty and self-rule results in litigation: the exercise of tribal sovereignty and jurisdictional issues, contracts, employment practices, and tort actions arising on the reservations. I will briefly outline the issues involved in these areas.

economic development, tribal sovereignty, tribal self-government, self-determination, sovereign immunity, tribal courts, tribal law

Abstract:
The year 2008 marks the thirtieth anniversary of the enactment of the Indian Child Welfare Act (ICWA), one of the most dynamic pieces of legislation in the field of federal Indian affairs, which irrevocably changed the traditional jurisdictional prerogatives of states in child custody matters. ICWA's jurisdictional scheme vests exclusive jurisdiction over Indian children who reside or are domiciled on the reservation, and grants states concurrent jurisdiction over Indian children located off the reservation. A crucial but often overlooked facet of ICWA's jurisdictional scheme is tribal wardship determinations, a remarkably constructive provision that establishes exclusive tribal jurisdiction over Indian children who are wards of the tribal court -- irrespective of the child's domicile. This jurisdictional construct directly conflicts with the normative notions of state court jurisdiction over family relations. And the cross-hatching of state and tribal interests in off-reservation child welfare matters has engendered serious tension and questions about the precise contours of tribal sovereignty and the *16 boundary line between state and tribal power, particularly as to Indian children located outside a tribe's geographic territory. This Article attempts to demarcate that line. From an examination of the historical development of tribal wardship decisions and ICWA's legislative history, material unexamined in this context in other scholarship, I posit that that there should be no fixed geographic boundary delimiting tribal jurisdiction over Indian children who are wards of the tribal court. The welfare of Indian children lies at the heart of tribal sovereignty. Thus, there are no real boundaries to protecting these essential tribal relations where the exercise of tribal authority is vital to the maintenance of its identity and self-determination. “[T]here can be no greater threat to ‘essential tribal relations,’ and no greater infringement on the right of [tribes] to govern themselves than to interfere with tribal control over the custody of their children.”

ICWA, Indian, Indian child, welfare, ward, equal protection, jurisdiction, conflict of law, comparative law

Abstract:
The young Indian girl spoke quietly: ‘I can remember [the welfare worker] coming and taking some of my cousins and friends. I didn't know why and I didn't question it. It was just done and it had always been done . . ..’
This casenote will attempt to analyze the Indian Child Welfare Act in three ways: first, by reviewing the history of the jurisdictional conflict between state courts and the federal trust relationship with Indian tribes; second, by reviewing procedures and safeguards the ICWA provides with regard to Indian tribal jurisdiction over child custody proceedings; and third, by reviewing the status of the ICWA ten years after its enactment. Based on these analyses, this note then proposes changes to the language of the Act to eliminate loopholes which inhibit the achievement of the ICWA's purposes and policies. Generally, these proposals consist of amending the Act's language regarding ‘good cause’ and providing more specific definitions for ‘Indian child,’ ‘family’ and ‘domicile.’

ICWA, Indian child, Indian child welfare, domicile, family, good cause, jurisdiction

Abstract:
These words were spoken by Sitting Bull, a Hunkpapa Lakota leader, following his peoples' victory over the army of the United States at the Battle of Little Big Horn in 1876. In the struggle to protect the Lakota lands against colonial expansion, Sitting Bull recognized that the gravest danger facing his tribe was the distinct possibility of their extermination. In the almost one hundred twenty years since these words were spoken, Indian people have learned to defend themselves by waging battles through means other than armed struggle. Indian tribes have since fought to maintain their right to govern their own people; they have fought for their sovereignty, a principle which is, as one noted Indian scholar has argued, “the most basic principle of all Indian law.”

Tribal sovereignty is the force that binds a community together and represents the will of a people to act together as a single political entity. Tribal sovereignty is also a barrier against intrusion into tribal affairs. If left unguarded, tribal sovereignty faces two dangers, either of which could severely limit its scope or even destroy it. The first danger emanates from external forces-specifically, federal and state government interference with tribal governmental authority or tribal affairs. The second danger to tribal sovereignty is the failure of the tribes themselves to internally organize their own governments in order to fully and fairly exercise their powers of self-government in a manner which is responsive to the welfare of their people.

tribal sovereignty, tribal government, child welfare, ICWA, Indian child welfare

Abstract:
Indian tribes historically have used banishment as a means of social control and punishment. The custom has been recently revived to help tribes cope with a host of socially deviant and criminally dangerous activities within their respective communities. Hindered by their limited civil and criminal jurisdiction, frustrated with their inability to impose meaningful sanctions, and fearful of further disruption, harm, and violence to their communities, tribal governments recognize that the old customs of banishment and exclusion are powerful and effective means of reestablishing order and safety in their communities.

The use of banishment in contemporary tribal society, however, has engendered serious strife and contention as it pits traditional values and customs against modern notions of fairness and due process. Tribal banishment decisions are now regularly challenged in federal district court under an array of unique legal theories, primarily allegations of unfairness and due process violations under the habeas corpus provision of the Indian Civil Rights Act.

This Article makes several assertions. For one, there is an innate sense of justice in tribal cultural and legal systems comprised collectively of the historical tribal customs around family and community and the more modern written laws and judicial decisions that are intended to afford fairness and due process protections. For another, respect for tribal sovereignty requires restraint in extra tribal judicial review and oversight of tribal banishment and exclusion decisions. Finally, while there are vast variations in tribal social, legal, and political systems and, for that reason, unique "sense[s] of justice," tribes must be allowed to define and experience their individual and particular senses of cultural justice.

due process, sovereignty, Indian law, exhaustion of remedies