Turtle Talk

Arizona Federal Court Holds Harrah’s is Not an Arm of the Tribe, Allows Race Discrimination Suit to Proceed

May 13, 2024Matthew L.M. Fletcher

Here are the materials in Xia v. Harrah’s Arizona Corporation (D. Ariz.):

1 Complaint.pdf Download

11 Motion to Dismiss.pdf Download

14 Response.pdf Download

18 Reply.pdf Download

22 DCT Order.pdf Download

Ann Tweedy on Anticommandeering and Indian Affairs Legislation

May 13, 2024Matthew L.M. Fletcher

Ann E. Tweedy has posted “Anticommandeering and Indian Affairs Legislation,” forthcoming in the Harvard Journal on Legislation, on SSRN.

Here is the abstract:

The Supreme Court recently applied the narrow and relatively new anticommandeering doctrine for the first time to federal Indian Affairs legislation in Halaand v. Brackeen without explaining why the doctrine should be extended from the Interstate Commerce Clause context to that of the Indian Commerce Clause, as well as to the other congressional powers that form the basis of the Indian Child Welfare Act (ICWA). In subsequent cases relating to Indian Affairs legislation, the Court should clarify that only a very narrow version of the anticommandeering doctrine applies in this context because of the virtual absence of state authority in the area and the history of acceptance of federal activities that can be described as commandeering state enforcement activities. Existing literature in this area is limited, with Matthew Fletcher and Randall Khalil having argued, before Brackeen was issued, that ICWA should be interpreted as having been enacted under Section 5 of the Fourteenth Amendment, an invitation that the Court ultimately did not take up. This Essay, The Diminished Significance of the Anticommandeering Doctrine in the Context of Indian Affairs Legislation, is important because it explains holes in the Court’s reasoning in Brackeen and because it safeguards Congress’s ability to protect Native Americans and Tribes from longstanding abusive state practices such as the unwarranted removal of Indian children from their homes.

Elizabeth Reese on the Lack of Tribal Representation in the Federal Government

May 10, 2024Matthew L.M. Fletcher

Elizabeth Reese has published “Tribal Representation and Assimilative Colonialism” in the Stanford Law Review.

Here is the abstract:

There are 574 federally recognized domestic dependent tribal nations in the United States. Each tribe is separate from its respective surrounding state(s) and governs itself. And yet, none of them have the power to send representatives to Congress. Our democratic representative structures function as if tribal governments and the reservations they govern do not exist. But tribal citizens do not simply live within a state and are not simply governed by that state like any other state citizen. Rather, it is tribal law and tribal governments—not state law or state governments—that primarily govern and shape the lives of tribal citizens living on reservations. Tribal governments are not complementary or subsidiary to state governments—they are frequent rivals for power and resources. This system, simply put, doesn’t make sense. Tribes should have their own representation in the federal government. This Article makes the case for why and examines how this seemingly obvious omission in our democratic structuring came to pass.

This Article examines the democratic mismatch between existing governments—which include not only 50 states, but also 574 federally recognized tribes—and the representative democratic structure that is built into the Constitution around the institution of the state. It details the failed attempts of tribal governments to obtain representation, either as states or outside of statehood. This history reveals a story about race, power, colonialism, and institutions. Attempts by white majorities to hold onto political power within states included denying Native peoples’ individual rights and denying statehood to largely Native areas until Native people assimilated or white citizens outnumbered them.

These dynamics, which this Article dubs “assimilative colonialism,” have not only shaped our existing democratic structures but have also had a lasting effect on Native relationships with political power. The nefarious brilliance of assimilative colonialism was to offer American political power to Native peoples—whether citizenship, statehood, or delegates—only and always at the cost of what made them Native. As a result, many Native people justifiably view American political power not as empowering but as dangerous. Assimilative colonialism has thus held back the emergence of Native movements for political reform by making it impossible to even imagine tribal representation in a real sense since it seemed only possible through assimilation.

It is long overdue that we step back and examine the legacy of assimilative colonialism in American representative democracy. We ought to think about structural reform and what representative structures could—and maybe should—have been on the table for tribal governments and their citizens since the beginning. We ought to be asking: What would American democratic structures look like if we truly incorporated tribal governments as equal sovereigns within the United States?