Federal Indian law is a myth

American Indian Law Review, 1998

Montana Law Review, 1995

New Diversities, 2017

United States " federal Indian law " consists of a body of rules rooted in the colonial doctrine of " Christian discovery. " Viewed through the lens of Carl Schmitt's concept of " sovereign ban, " Christian discovery creates a " state of exception, " placing Native Peoples both inside and outside the constitutional order of the United States and simultaneously constituting the claim of U.S. sovereignty. The instability inherent in this double performance emerges as the " paradox of sovereignty. " Native self-determination efforts appear as lèse-majesté – " insults to sovereignty " – heretical acts challenging Christian colonial domination. [New Diversities • Volume 19, No. 2, 2017 http://newdiversities.mmg.mpg.de/wp-content/uploads/2018/01/2017_19-02_06_Errico.pdf ]

inaugural lecture in the American Indian Civics Project …, 1997

Adaptations of this lecture appear in the following publications: "Introduction: Native Americans in American Politics," Encyclopedia of Minorities in American Politics, American Political Landscape Series, Jeffrey D. Schultz, editor (Phoenix, AZ: The Oryx Press, 2000), pp. 569-580. "Native Americans In America: A Theoretical And Historical Overview," Wicazo Sa Review, Spring 1999, vol. 14, no. 1, pp. 7-28. [University of Minnesota Press]. Reprinted in American Nations: Encounters in Indian Country, 1850 to the Present, Frederick E. Hoxie, Peter C. Mancall, and James H. Merrell, editors (New York: Routledge, 2001), chapter 23, pp. 481-499.

The Yale Undergraduate Research Journal, 2020

While Native nations in the United States have tribal sovereignty-that is, the inherent freedom and authority to govern themselves without outside control-non-Native actors have often challenged this institution within legal and political spaces. The United States court system, starting with the Marshall Court, has often attempted to define aspects of Indigenous sovereignty and federal-tribal relationships. The 2014 US Supreme Court case Michigan v. Bay Mills Indian Community is no exception, raising questions of sovereign immunity in the context of Indian gaming, tribal-state relationships, and land trusts. This paper first provides a general context for the case, identifying relevant historical events and legal precedents. Next, the paper illustrates the case facts and rulings and traces its journey to the highest court in the United States. Finally, it analyzes the contemporary significance of the rulings for the federal Indian law landscape and future cases, specifically noting the majority opinion's limiting conditions.

States of Sovereignty: Proceedings of the Fifteenth Native American Symposium, 2023

The history of “sovereignty” as a legal concept applied to Native American tribes in the United States is contingent on the whim of Federal judicial interpretation, which has evolved over past decades. In U.S. Supreme Court opinions, tribes are described explicitly as “domestic dependent nations” [Talton v. Mayes, 163 U.S. 376 (1896); Cherokee Nation v. Georgia (1831)]. In one notable judicial decision, where the Cherokee nation argued that it was an independent nation, and thereby immune to regulation by the State of Georgia, Justice Marshall stated of the Cherokees: “their relations to the United States resembles that of a ward to his guardian” [Cherokee Nation v. Georgia (1831)]. This parent-child approach to tribal sovereignty resulted in a Federal judicial normalization of the abrogation of independent decision-making power and self-actualization of tribes, in favor of a paternalistic regulatory regime whereby tribes are treated not as independent nations, but as a ward of the state reflected by a judicial tradition of “federal trust and responsibility” for its internal tribes. While on the one hand almost always emphasizing some version of “sovereignty” in treaties, laws, and judicial decisions, the U.S. Federal Government has a long tradition and present conception of tribes as an entity to be managed. One particular example of this management is the willingness of the Federal government to circumscribe tribal sentencing authority within tribal courts to a level (maximum of three years per felony) that exhibits distrust of tribal decision-making in a manner that results in disheartening outcomes for actual cases of criminality [(Pub. L. No. 111-211, 124 Stat. 2258].

Cornell International Law Journal, 1984

Analysis of Indian law requires an understanding of specific terms. The term "Indian" has no uniform definition. It varies from tribe to tribe and from statute to statute. For example, the Indian Reorganization Act defines "Indian" to mean a person of one half or more Indian blood, but does not require tribal affiliation. 25 U.S.C. § 479 (1982). The Indian Self-Determination and Education Assistance Act, however, requires membership in a tribe. Indian Self-Determination Assistance Act of 1975, 25 U.S.C. § 450b(a) (1982). "Indian country" is an Indian reservation, a dependent Indian community, or an Indian allotment. 18 U.S.C. § 1151 (1982). "Indian reservation" has no statutory definition, but the modem meaning refers to land set aside under federal protection for residence of tribal Indians. See F. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 34 (1982 ed.) [hereinafter cited as F. COHEN, 1982 ed.]. "Indian sovereignty" refers to powers of self-government retained by Indian tribes and neither explicitly limited by treaty or federal statute nor inherently inconsistent with the federal-tribe relationship. See infra text accompanying notes 7-18. Chief Justice Marshall characterized Indian tribes as "domestic dependent nations" whose relation "to the United States resembles that of a ward to his guardian." Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). Thus, Indian sovereignty paradoxically depends on the federal government. Because Indian sovereignty can be limited by treaty or federal statute, it is characterized as "limited sovereignty." Indian sovereignty is also characterized as "inherent" and "retained," because it consists of the original and remaining powers of self-government. See F. COHEN, 1982 ed., supra, at 235. "Indian tribe" does not have a uniform legal definition. The Bureau of Indian Affairs, however, relies upon the definition in Montoya v. United States, 180 U.S. 261 (1901). "By a 'tribe' we understand a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes illdefined territory.. . ." Id. at 266. See infra text accompanying notes 22-25. 2. Alaska Native Claims Settlement Act [ANCSA], Pub. L. No. 92-203, 85 Stat. 688 (1971) (codified as amended at 43 U.S.C. § § 1601-1628 (1982)). See infra note 73 and accompanying text. 3. The most important general principle in American Indian law is inherent sovereignty. It holds that Indian tribes retain inherent powers of self-government that are not explicitly limited by the federal government. See infra text accompanying notes 10-18. See generally F. COHEN, 1982 ed., supra note 1, at 232-41 (discussing the nature of tribal powers). 4. See infra notes 78, 113-15 and accompanying text. [Vol. 17:375 ALASKA NATIVE SOVEREIGNTY tion of international law. 8 The United States continued this pattern of diplomacy, thus recognizing the tribes as sovereigns. 9 Tribal sovereignty, however, is subordinate to the sovereignty of the United States. 10 Chief Justice Marshall addressed the paradox of a subordinate sovereign in Cherokee Nation v. Georgia" and Worcester v. Georgia. 12 In Cherokee Nation, Marshall portrayed the tribes as "domestic dependent nations" having a "relationship to the United States resembl[ing] that of a ward to his guardian."' 1 3 In Worcester, Marshall stated that "the settled doctrine of the law of nations is, that a weaker power does not surrender its independence-its right to selfgovernment, by associating with a stronger, and taking its protection."' 4 The tribes, he stated, were "independent political communities." 15 Courts, administrators, and commentators have struggled with the paradox of a relationship between a sovereign and a dependent sovereign. A Department of the Interior opinion addressed the problem, emphasizing the tribes' inherent sovereignty: The whole course of judicial decision on the nature of Indian tribal powers is marked by adherence to three fundamental principles: An Indian tribe possesses, in the first instance, all the powers of any sovereign State. Conquest renders the tribe subject to the legislative power of the United States and, in substance, terminates the external powers of sovereignty of the tribe,.. . but does not by itself affect the internal sovereignty of the tribe .... These powers are subject to be qualified by treaties and by express legislation of Congress, but save as thus expressly qualified, full powers of internal sovereignty are vested in the Indian tribes and in their duly constituted organs of 8. The United States stopped negotiating treaties with Indians in 1871. See infra note 48 and accompanying text. But see Cayuga Indians Claims, 6 R. Int'l Arb. Awards 173, 20 AM. J. INT'L L. 574 (Amer. & Brit. Cl. Arb. Trib. 1926) (compensatory award to Canadian Cayugas for taking of tribal lands based on equitable grounds and not on the theory that the tribe is a legal unit under international law). 9. The dictionary definition of "sovereign" is "one that exercises supreme authority within a limited sphere." WEnsTER's NEW COLLEGIATE DICTIONARY 1104 (1973 ed.). In this Note, the term "sovereignty" refers to the "inherent political independence" to which some native groups are entitled, and the term "exercise of sovereignty" refers to various powers that a sovereign may attempt to exercise. See F. COHEN, 1982 ed., supra note 1, at 246-57 (discussing powers retained by inherently sovereign tribes). This Note's proposed analysis identifies the existence of sovereignty by reference to natural rights theory and analyzes limits on the exercise of sovereignty by reference to limits imposed by the federal government. See infra text accompanying notes 151-60.

Citizenship Studies, 2011

American Indian tribal members are citizens of both tribal nations and the larger national body. Tribal nations’ contemporary resurgence has made tribal citizenship politically visible, materially significant, and politically contested. Conflicts about tribal members’ status are not merely racial or ethnic in character, but reflect fundamental tensions between settler societies and indigenous survivors who challenge national narratives and demand collective rights. Tribal members’ dual citizenships and the conflict about them are the result of discordant federal policy legacies, tenacious tribal survival, and the erosion of racial barriers to citizenship. Differences between ethnonational tribal citizenship and republican-based US citizenship fuel public criticism in the context of widespread ignorance about treaties and tribal rights. Crucially, while legal and political dimensions of citizenship have been partly extended to tribal members, they remain excluded from the national identity.

2022

An examination of tribal sovereignty with regards to Chief Justice John Marshall and the United States Constitution

Pennsylvania Law Review Online, 2021

“Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.” So reads McGirt v. Oklahoma, the most important reservation boundary case in the history of the Supreme Court. But before McGirt, courts often rewarded unlawful acts with reservation diminishment. This Article first places McGirt in the context of the Muscogee (Creek) Nation’s century long fight to restore sovereign rights illegally denied after allotment, and the even longer fight by the Muscogee Nation and others to survive a trail of broken treaty promises. It then corrects the false assumptions about the past and present of reservation boundaries that led the Court to turn lawbreaking into law. As to the past, I show that the allotment-era Congress knew that reservations did not depend on land tenure, and that its statutes distinguished between allotment acts that diminished reservations and those that did not. States, however, regularly broke the law, asserting jurisdiction in violation of federal Indian law rules. Before McGirt, however, the Court falsely assumed that “[t]he notion that reservation status of Indian lands might not be coextensive with tribal ownership was unfamiliar at the turn of the century,” and so justified relying on state violations of tribal sovereignty as “evidence” of congressional intent. As to the present, I show that reservation status is not disruptive for non-Indian communities, and often benefits tribal and non-tribal citizens alike. In high-profile cases in Tacoma, Washington and Pender, Oklahoma, life in those communities began to improve at the same time reservation boundaries were affirmed. Throughout the country tribal governments contribute to the economies and social welfare of their surrounding communities. The Muscogee Nation, whose sophisticated law enforcement, health care, governance, and economic development arms already partner with non-tribal governments throughout its territory, exemplifies the benefits that strengthening tribal self-governance can provide.