Ablavsky on State Criminal Jurisdiction in Indian Country: A History

Gregory Ablavsky, Stanford Law School, is publishing State Criminal Jurisdiction in Indian Country: A History in volume 133 of the Virginia Law Review. Here is the abstract.

In Oklahoma v. Castro-Huerta (2022), the Supreme Court dismantled the long-standing black-letter principle that states lack criminal jurisdiction in Indian country absent congressional authorization by embracing a revisionist historical account emphasizing inherent state sovereignty. The consequences have been predictable: intense uncertainty and ongoing litigation. Oklahoma’s highest courts, for instance, have repeatedly endorsed inherent state jurisdiction over Native people within Indian country, employing Castro-Huerta to distinguish considerable contrary federal law and precedent. The challenge, especially given the current history-minded judiciary, is that the claim that states have never asserted inherent criminal jurisdiction over Indian country is too simplistic and easily disproven, making it tempting to toss out the old rules. But the revisionist claim, advanced by some scholars and embraced by Justice Thomas, that states enjoyed expansive criminal jurisdiction, is also wrong. This Article attempts to offer a more rigorous legal history, moving beyond the handful of Supreme Court decisions to survey every identifiable state and federal case on inherent state criminal jurisdiction in Indian country. It depicts four distinct periods: an initial headlong assault on federal authority (1787–1834) ; an era of "great confusion" in which states pressed on the many uncertainties of federal Indian law (1835–1886) ; the jurisdictional chaos of the allotment era (1880s–1930s); and a period of relative statutory stability (1948–2022) that Castro-Huerta has now abruptly terminated. What this history shows above all is contestation—a cat-and-mouse game in which states seized on ambiguities to claim authority, only to be periodically rebuffed by the federal courts. But the mere existence of past conflict does not support broader state jurisdiction in Indian country. Rather, every conventional method of legal and constitutional interpretation undercuts the argument that such jurisdiction was ever meaningfully positive law. There are also strong normative reasons for skepticism, since state claims of authority were rarely motivated by public safety but were instead tools to facilitate Native dispossession and erode tribal self-governance. By recounting these complexities, the Article challenges the current legal instability that threatens the foundations of modern tribal sovereignty.

Download the article from SSRN at the link.

Rossi on Slaves, Indians, and Legal Formalism

Christopher Rossi, UiT, Arctic University of Norway, has published Slaves, Indians, and Legal Formalism in 19th Century America. Here is the abstract.

The US engagement with 19th century international society saw the maturation of its approach toward international law. This paper focuses on two historical considerations that helped to shape that character--ending the international slave trade, and Indian removal. An emerging legal methodology of legal formalism helped to rationalize this engagement, and affected the young republic's engagement with the world. Understanding the rise of legal formalism, where it came from and what were its influences, uncovers a significantly American story of ambivalence, which has shaped US foreign policy vacillations between themes of universalism and unilateralism, and international community and international society.

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Bilder on Native Nations and the Convention @BCLAW @FordhamLRev

Mary Sarah Bilder, Boston College Law School, is publishing Without Doors: Native Nations and the Convention in volume 89 of the Fordham Law Review (2021). Here is the abstract.

The Constitution’s apparent textual near silence with respect to Native Nations is misleading. As this Article reveals, four representatives of Native Nations visited Philadelphia in the summer of 1787. Their visit ensured that the Constitution secured the general government’s treaty authority with Native Nations and decisively barred state claims of authority. But, the visits also threatened to disrupt Congress’s passage of the Northwest Ordinance and the vision of nationally sanctioned white settlement. In the process of successfully preventing the representatives from reaching Congress, Secretary at War Henry Knox developed the central tenets of what would become the George Washington administration’s early Indian policy: an acceptance of Native Nation sovereignty, disapproval of unauthorized white encroachment, and an attempt to discourage Native Nations from sending additional representatives. In addition to emphasizing the strong national federal government role and Native Nation sovereignty, this history provides evidence that the Framers’ generation without doors—outside the Convention—critically affected the creation of the Constitution as an instrument and a system of government. Recovering the visits of the deputies to Philadelphia in 1787 and the promises they received, including Washington’s handshake, suggests that the United States today should reaffirm the right and the importance of Native Nations sending deputies to Congress.

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Fletcher on Anishinaabe Law and The Round House @MSULaw

Matthew L. M. Fletcher, Michigan State University College of Law, has published Anishinaabe Law and The Round House at 10 Albany Government Law Review 88 (2017). Here is the abstract.

This paper addresses the Indian country criminal justice system’s difficulties through the context of the Great Lakes Anishinaabeg’s traditional customs, traditions, and laws, and their modern treatment of crime. Louise Erdrich’s The Round House expertly captures the reality of crime and fear of crime in Anishinaabe Indian country, and offers a bleak view of the future of criminal justice absent serious reform in the near future.

Download the article from SSRN at the link or here from the journal's website.

Fletcher on Textualism's Gaze @MSULaw

Matthew L. M. Fletcher, Michigan State University College of Law, is publishing Textualism's Gaze in the Michigan Journal of Race and Law. Here is the abstract.

In recent years, perhaps because of the influence of Justice Scalia, the Supreme Court appears to place greater emphasis on texts than ever before. “We’re all textualists now,” Justice Kagan declared in 2015. But it is one thing to say a court will prioritize the text. It is another thing to choose which text is to be prioritized. Follow the textualism of constitutional interpretation and one sees judges prioritize the public understanding of the privileged white men in power at the time of the framing of the constitutional text. Follow the textualism of federal statutory interpretation and one sees judges prioritize the text exclusively, and if the judges engage with the legislative history of the statute they will engage with the public understanding of the legislators who enacted the law, again, largely privileged white men. The victory of textualism is not necessarily in the outcomes, but in significantly narrowing the scope of evidence available to interpret the text, in some cases to almost nothing but the bare words of the statute. Women, persons of color, and other marginalized persons and entities are almost never relevant to the textualist’s gaze. The narrow focus of the textualist’s gaze also warps how Indian law matters are decided. The judiciary rarely considers how the governments and people most affected by the text — Indian tribes and individual Indians — understand the meaning of the text. The judiciary, whether it intends to or not, considers Indians and tribes as extraneous to the interpretive process.

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Anker on Law As...Forest: Eco-Logic, Stories, and Spirits in Indigenous Jurisprudence

Kirsten Anker, McGill University Faculty of Law, has published Law As… Forest: Eco-Logic, Stories and Spirits in Indigenous Jurisprudence at 21 Law/Text/Culture 191 (2017). Here is the abstract.

This paper was presented as part of the Law As... Symposia series at Berkeley in 2016, this one on "Minor Jurisprudence." Taking up the suggestion that minor jurisprudence may consist either in the perpetual critique of the outsider to major jurisprudence or in the initiation of new grounds for jurisprudence, the essay wonders whether some forms of Indigenous jurisprudence – with a focus on the articulations of North American scholars – might do both. Emerging out of embodied relations with sentient forests, mountains, rivers and other non-humans, practices of Indigenous jurisprudence are at once a living critique of the disenchanted character of modern law, as well as a literal grounding of jurisprudence in relationships to place. The essay takes Indigenous jurisprudence on its own terms, particularly through ecologies as teacher, place-based stories and a participatory consciousness that experiences the spirit of the land, while attempting to articulate this jurisprudence in the idiom of the author’s own intellectual tradition, such as through the scientific foundations of Earth jurisprudence, through metaphor in the analysis of myth, and through semiotics as a way of comprehending a sentient landscape.

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Shabalala on IP, Traditional Knowledge, and Traditional Cultural Expressions In Native American Tribal Codes @Dyebo

Dalindyebo Bafana Shabalala, University of Dayton School of Law, CWRU School of Law, Maastricht Faculty of Law, is publishing Intellectual Property, Traditional Knowledge, and Traditional Cultural Expressions in Native American Tribal Codes in volume 51 of the Akron Law Review (2017). Here is the abstract.

Indigenous peoples and nations have been making demands for protection and promotion of their intellectual property, traditional knowledge, and traditional cultural expressions in domestic and international fora. The power of the basic demand is one that lies in claims of moral duty and human rights. This Article argues that in order for such claims to have power, one of the necessary elements for success is that the demandeurs themselves need to provide such protection within whatever scope of sovereignty that they exercise. In the context of Native American tribes seeking protection for Native American intellectual property under federal law in the broader territory of the United States, this Article argues that a necessary condition for success may be ensuring such protection on their own tribal territory. This Article serves as an early contribution to a broader research agenda aimed at providing more data as a basis for tribal claims for protection of their traditional knowledge and traditional cultural expressions. It presents a survey of the nature and scope of legal and formal protection that tribal legislation in the United States has provided for traditional knowledge and traditional cultural expressions. It further surveys and analyzes the nature and scope of protection provided under federal law and assesses the gap between what tribal codes provide and what federal law provides. It then proposes a series of next steps as a research agenda.

Download the article from SSRN at the link.

Fletcher on Failed Protectors: The Indian Trust and "Killers of the Flower Moon" @MSULaw @DavidGrann

Matthew L. M. Fletcher, Michigan State University College of Law, is publishing Failed Protectors: The Indian Trust and Killers of the Flower Moon in the Michigan Law Review. Here is the abstract.

This Review uses Killers of the Flower Moon as a jumping off point for highlighting for readers how so many Indian people in Indian country can be so easily victimized by criminals. And yet, for however horrible the Osage Reign of Terror, the reality for too many Indian people today is much much worse. The federal government is absolutely to blame for these conditions. This Review shows how policy choices made by all three branches of the federal government have failed Indian people. Part I establishes the federal-tribal trust relationship that originated with a duty of protection. Part II establishes how the United States failure to fulfill its duties to the Osage Nation and its citizens allowed and even indirectly encouraged the Osage Reign of Terror. Part III offers thoughts on the future of the trust relationship in light of the rise of tribal self-determination. Part IV concludes the Review with a warning about how modern crime rates against Indian women and children are outrageously high in large part because of the continuing failures of the United States.

Download the review from SSRN at the link.

Ablavsky on "With the Indian Tribes": Race, Citizenship, and Original Constitutional Meanings @StanfordLaw

Gregory Ablavsky, Stanford Law School, is publishing 'With the Indian Tribes': Race, Citizenship, and Original Constitutional Meanings in the Stanford Law Review. Here is the abstract.

Under black-letter law declared in Morton v. Mancari, federal classifications of individuals as “Indian” based on membership in a federally recognized tribe rely on a political, not a racial, distinction, and so are generally subject only to rational-basis review. But the Supreme Court recently questioned this long-standing dichotomy, resulting in renewed challenges arguing that, because tribal membership usually requires Native ancestry, such classifications are race-based. The term “Indian” appears twice in the original U.S. Constitution. A large and important scholarly literature has developed arguing that this specific constitutional inclusion of “Indian tribes” mitigates equal protection concerns. Missing from these discussions, however, is much consideration of these terms’ meaning at the time of the Constitution’s adoption. Most scholars have concluded that there is a lack of evidence on this point—a “gap” in the historical record. This Essay uses legal, intellectual, and cultural history to close that “gap” and reconstruct the historical meanings of “tribe” and “Indian” in the late eighteenth century. Rather than a single “original meaning,” it finds duality: Anglo-Americans of the time also alternated between referring to Native communities as “nations,” which connoted equality, and “tribes,” which conveyed Natives’ purported uncivilized status. They also defined “Indians” both in racial terms, as non-white, and in jurisdictional terms, as non-citizens. These contrasting meanings, I argue, have potentially important doctrinal implications for current debates in Indian law, depending on the interpretive approach applied. Although the term “tribe” had at times derogatory connotations, its use in the Constitution bolsters arguments emphasizing the significance of Native descent and arguably weakens current attacks on Native sovereignty based on invidious legal distinctions among Native communities. Similarly, there is convincing evidence to read “Indian” in the Constitution in political terms, justifying Morton’s dichotomy. But interpreting “Indian” as a “racial” category also provides little solace to Indian law’s critics, since it fundamentally undermines their insistence on a colorblind Constitution.

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Kiel on Racial Registration in Native American Communities @Doug_Kiel

Doug Kiel, Northwestern University, is publishing Bleeding Out: Histories and Legacies of 'Indian Blood', in The Great Vanishing Act: Blood Quantum and the Future and Native Nations (K. Ratteree and N. Hill, 2017). Here is the abstract.

This essay examines the origins of the blood quantum system of racial registration in Native American communities, evaluates arguments for and against its continuation, and identifies potential alternatives for reconciling sovereign Indigenous nationhood with racialized conceptions of indigeneity.

Download the essay from SSRN at the link.

Miller on Native American Constitutions and Their Influence on the United States Constitution

Robert J. Miller, Arizona State University College of Law, has published American Indian Constitutions and Their Influence on the United States Constitution in volume 159 of the Proceedings of the American Philosophical Society (March 2015). Here is the abstract.

This paper analyzes modern-day American Indian constitutionalism. It describes the development of written constitutions by Indian nations and primarily focuses on constitutions developed since 1934 under the auspices of the federal Indian Reorganization Act. This paper also briefly examines the evidence that American Indian political philosophies, and traditional tribal governmental structures and ideas, influenced many of the Founding Fathers and the drafting of the United States Constitution.

Download the article from SSRN at the link.

David Carlson's New Book on American Indian Law and Literature, Published by the University of Oklahoma Press

David J. Carlson, Professor of English, California State University, San Bernadino, has published Imagining Sovereignty: Self-Determination in American Indian Law and Literature (University of Oklahoma Press, 2016)(American Indian Literature and Critical Studies Series; 66). Here is a description of the contents from the publisher's website.

“Sovereignty” is perhaps the most ubiquitous term in American Indian writing today—but its meaning and function are anything but universally understood. This is as it should be, David J. Carlson suggests, for a concept frequently at the center of various—and often competing—claims to authority. In Imagining Sovereignty, Carlson explores sovereignty as a discursive middle ground between tribal communities and the United States as a settler-colonial power. His work reveals the complementary ways in which legal and literary texts have generated politically significant representations of the world, which in turn have produced particular effects on readers and advanced the cause of tribal self-determination. Drawing on western legal historical sources and American Indian texts, Carlson traces a dual genealogy of sovereignty. Imagining Sovereignty identifies the concept as a marker, one that allows both the colonizing power of the United States and the resisting powers of various American Indian nations to organize themselves and their various claims to authority. In the process, sovereignty also functions as a point of exchange where these claims compete with and complicate one another. To this end, Carlson analyzes how several contemporary American Indian writers and critics have sought to fuse literary practices and legal structures into fully formed discourses of self-determination. After charting the development of the concept of sovereignty in natural law and its permutations in federal Indian policy, Carlson maps out the nature and function of sovereignty discourses in the work of contemporary Native scholars such as Russel Barsh, Gerald Taiaiake Alfred, D’Arcy McNickle, and Vine Deloria, and in the work of more expressly literary American Indian writers such as Craig Womack, Elizabeth Cook-Lynn, Gerald Vizenor, and Francisco Patencio.

 

Appropriation of Native American Culture

Angela Riley, University of California, Los Angeles, and Kristen A. Carpenter, University of Colorado Law School, are publishing Owning Red: A Theory of Indian (Cultural) Appropriation in the Texas Law Review (2016). Here is the abstract.

In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group the cultural expressions and resources of another. While these and other incidents are currently in the headlines, American Indians often experience these claims within an historical and continuing experience of dispossession. For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands and artifacts, bodies and religions, identities and beliefs, all toward the project of conquest and colonization. Indian resources have been devalued by the law and made available for non-Indians to use of their own purposes. Seeking redresses for the losses caused by these actions, tribes have brought claims under a variety of laws, from trademark and copyright, to the First Amendment and Fifth Amendment, and some have been more successful than others. As a matter of property law, courts have compensated - albeit incompletely - the taking of certain Indian lands and has also come to recognize tribal interests in human remains, gravesites, and associated artifacts. When it comes to intangible property, however, the situation is more complicated. It is difficult for legal decision-makers and scholars alike to understand why Indian tribes should be able to regulate the use of Indian names, symbols, and expressions. Indeed, non-Indians often claim interests, sounding in free speech and the public domain, in the very same resources. To advance understanding of this contested area of law, this Article situates intangible cultural property claims in a larger history of the legal dispossession of Indian property - a phenomenon we call “Indian appropriation.” It then evaluates these claims vis à vis prevailing legal doctrine, and offers a normative view of solutions, both legal and extralegal.

Download the article from SSRN at the link.