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President Nixon’s Indian Law Legacy: A Counterstory
Scholars of Federal Indian law have often celebrated President Richard Nixon for advancing tribal interests through legislation and policy initiatives. Far less attention has been paid to his impact on Federal Indian law through the appointments he made to the U.S. Supreme Court. During the time his four appointees served together, the Supreme Court rendered three decisions that are among the most harmful to tribal interests of the modern era. Whether any President should be held responsible for the decisions of his appointees is no simple question. It is worth noting, however, that President Nixon had every reason to know the issues in those three cases would likely reach the Supreme Court. Yet he did not investigate or take into account his appointees’ views on Native issues before making the appointments. Further, for at least one of the appointees—the one most consistently hostile to tribal interests—there was ample evidence of those views had President Nixon cared to check.
Principles of International Law That Support Claims of Indian Tribes to Water Resources
A growing body of international legal principles recognizes the right of indigenous people to water resources as a key component of their rights to self-determination, land, and economic self-sufficiency. These legal norms impose obligations on states both to recognize this right and to take affirmative steps to allow indigenous people to realize it. While the United States has not formally acceded to many of the applicable international instruments, the primary principles are embodied in instruments it has joined, and, in addition, some of these principles may constitute customary international law that applies regardless of accession.
Part I of this Article examines this body of legal principles as they relate to indigenous people’s access to water resources and also examines the international institutions which have been set up to interpret and implement these principles. Part II discusses the bipartisan federal policy over the last five decades in the United States to promote and protect the self-determination of Indian Tribes and the specific actions the United States has taken over that time period concerning Indian water rights. Finally, Part III discusses how international legal principles and mechanisms might be used to support a more comprehensive approach by the United States to address the unmet water needs of Tribes, rather than the current approach that focuses primarily on the adjudication and settlement of individual Tribes’ legal claims to water.
Crime and Governance in Indian Country
Criminal jurisdiction in Indian country is defined by a central, ironic paradox. Recent federal laws expanding tribal criminal jurisdiction are, in many respects, enormous victories for Indian country, as they acknowledge and reify a more robust notion of tribal sovereignty, one capable of accommodating increased tribal control over safety and security on Indian reservations. At the same time, the laws make clear that sovereignty comes at a price, potentially working to effectuate further assimilation of tribal courts and Indian people. As a result, at the same time that tribal sovereignty gains ground in ways critical to autonomy and self-governance, it is simultaneously threatened by exogenous forces that have the potential to homogenize tribal justice systems legally, politically, and—in particular—culturally.
This Article offers the first comprehensive assessment of the Tribal Law and Order Act and the reauthorization of the Violence Against Women Act, respectively, to show how they relate to one another on the ground and the implications for tribal sovereignty and self-determination. Ultimately, based on data compiled for the first time as well as extensive secondary sources, I argue that expanded criminal jurisdiction and punishment authority have, perhaps paradoxically, enhanced the ability of tribes to develop and enforce policies, laws, and procedures that are consistent with tribal custom and tradition. This presents a unique opportunity worthy of further exploration. In other words, rather than sovereignty and assimilation expanding in tension with one another, I find that the application of the laws has been experienced in tribal communities, as least anecdotally and preliminarily, as greatly enhancing—not threatening or destroying—tribal sovereignty and Indian cultural survival.
Recentering Tribal Criminal Jurisdiction
The boundaries of modern tribal criminal jurisdiction are defined by a handful of clear rules—such as a limit on sentence length and a categorical prohibition against prosecuting most non-Indians—and many grey areas in which neither Congress nor the Supreme Court has specifically addressed a particular question. This Article discusses five of the grey areas: whether tribes retain concurrent jurisdiction to prosecute major crimes, whether tribes affected by Public Law 280 retain concurrent jurisdiction to prosecute a full range of crimes, whether tribes may prosecute Indians who are not citizens of any tribe, whether tribes may prosecute their own citizens for crimes that occur outside of Indian country, and how much authority and flexibility tribes have to address juvenile delinquency as they see fit. Many courts have employed an “outside in” approach to these questions, one which begins by assessing the scope of federal and state criminal jurisdiction and then attempts to discern the minimum degree of tribal criminal power necessary to fill the gap left by federal and state authority. Because many tribal criminal justice systems have long devoted most of their resources to filling this gap (prosecuting only minor crimes committed by tribal citizens within Indian country), it may seem to a court that any further exercise of jurisdiction is unnecessary and new, leading to a limited vision of tribes’ retained criminal jurisdiction. This approach prevents engagement with tribal jurisdiction and substantive criminal law on their own terms, leaving courts and legislators to rely on generalizations and assumptions rather than carefully considering the purpose and scope of, and limitations on, tribal criminal jurisdiction. In the past few decades, however, courts have followed the lead of tribes and legal scholars by employing an “inside out” approach, which centers tribes by asking only whether a particular power is an element of tribes’ sovereignty and whether it has been taken away. When a court employs an inside out approach, neither the scope of federal and state jurisdiction nor the common practices of tribal criminal courts bear directly on the scope of modern tribal criminal power. Tribal criminal jurisdiction is examined standing alone, which may lead to consideration of why criminal jurisdiction is necessary for sovereignty, the multiple functions such jurisdiction serves, and the various forms it may take. As applied to the questions discussed here, the result is a much broader vision of tribes’ retained criminal power. This Article explains why the inside out approach is the more appropriate one and how the analytical shift is attributable in large part to the work of Carole Goldberg. By addressing five specific grey areas of tribal jurisdiction, this Article demonstrates how the use of an inside out methodology—a clear alternative to the implicit divestiture approach employed most famously in Oliphant v. Suquamish Indian Tribe—can have significant consequences for the future of tribal criminal jurisdiction.
The Politics of Inclusion: Indigenous Peoples and U.S. Citizenship
This Article explores the dynamics of U.S. citizenship and indigenous self-determination to see whether, and how, the two concepts are in tension and how they can be reconciled. The Article explores the four historical frames of citizenship for indigenous peoples within the United States—treating indigenous peoples as citizens of separate nations, as wards of the federal government, as American citizens, and as members of a racial minority group—as well as a fifth frame, which emerges through recognition of the right to self-determination. Taken in historical context, the doctrines defining eligibility for U.S. citizenship have created an overarching view of nationality that supports the political identity of the nation-state. Today, this approach continues under the rubric of “birthright citizenship” and efforts to deploy immigration law to restrain the transnational movement of people across borders. This approach clearly affects indigenous groups that are divided by an international border, but it also affects other indigenous peoples because of its implicit understandings about the nature of their rights. The U.N. Declaration on the Rights of Indigenous Peoples specifies that nation-states should accommodate the spiritual, social, and cultural needs of indigenous peoples divided by an international border. Yet, that right is challenged by a domestic politics about immigration that is often racialized and discounts the political identity of transborder peoples. This Article posits that the dynamics of inclusion and exclusion have always served as the twin pillars of American equality—and oppression. Today, this binary extends beyond U.S. domestic law to affect the rights of indigenous peoples under international law; there is a growing tension between multiculturalism and multinationalism within the realms of domestic and international policy. In this Article, I argue that a human rights framework requires the development of coherent theories about citizenship, sovereignty and self-determination, and I outline an approach for this work.
Tribal Sovereignty, Tribal Court Legitimacy, and Public Defense
In June 2016, the Supreme Court held in United States v. Bryant that uncounseled tribal court convictions could serve as predicate offenses under 18 U.S.C. § 117(a). Citing the public safety crisis in Indian country, the limitations of tribal court sentencing, and the legislative history of Section 117(a), the Court upheld the federal statute enacted to address domestic violence offender recidivism. Beyond Section 117(a), at stake in Bryant was a challenge to tribal sovereignty, tribal courts’ ability to provide due process for their defendants, and protection for Indian victims of domestic violence. Bryant is simultaneously nested within a larger national conversation about the crisis of public defense in the United States, a due process right fundamental to Anglo-American jurisprudence. Due to tribes’ preconstitutional status, procedural protections for defendants in tribal court stem not from the U.S. Constitution, but from tribal law and the Indian Civil Rights Act, which guarantees a right to counsel at the defendant’s expense. Though the Sixth Amendment right to appointed counsel does not apply in tribal court, no liberal sovereign can be absolved of the imperative to protect the rights of the accused in its criminal proceedings.
Moving forward in the wake of Bryant, tribal courts must address this imperative. Procedural protections for tribal court defendants should be measured not by replication of state and federal public defense systems, but rather by analyzing tribal courts under international principles of comity to determine if a verdict is fundamentally fair. This Comment offers a two-layered proposal for addressing the public defense needs of tribal courts: calling first for a reformation of federal funding structures to promote strong federal and tribal partnerships, and second, by examining the models tribal courts across the country are using to ensure fairness and protect the rights of criminal defendants.
The Double-Edged Sword of Sovereignty by the Barrel: How Native Nations Can Wield Environmental Justice in the Fight Against the Harms of Fracking
Natural resource extraction has become an appealing form of economic growth for many Native nations. Nations have experienced booming economic growth and prosperity from oil and gas development, but this has come at the expense of environmental and social harms to their communities. These environmental and social harms develop because the oil and gas industries and the Native nations’ governments externalize costs of environmental and social protections onto the public in order to reap the benefits of saved costs. The ability to punt these environmental and social costs can be attributed to encroachments on sovereignty, institutional racism, and internal corruption, all of which cause great harm to Native citizens. Litigation against environmental and social harms is not the best solution for ensuring healthy environments when Native nations pursue economic development through oil and gas extraction. Instead, distributive and social justice policy solutions, under an environmental justice framework, can successfully provide protections to communities and the environment by forcing oil and gas industries to internalize all costs of oil and gas development and growth. This Comment, through the use of case studies, determines best practices of distributive and social justice policy solutions that Native nations can implement to internalize the costs of oil and gas extraction. Further, this Comment examines these best practices in the context of the booming oil and gas economy in the Mandan, Hidatsa, and Arikara Nation and the Bakken oil field.
Turtle Talk 