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Can the Constitutional Sin of Colonialism be Redeemed?

Seth Davis, American Colonialism and Constitutional Redemption, 105 Cal. L. Rev. 1751 (2018).

The United States Constitution—that great experiment in creating a “more perfect union,” more democratic, egalitarian, and libertarian—was founded in sin. These sins include, among others, slavery and political exclusion of people of color and women of all races. They also include the erasure of sovereignty required to found a country on a continent occupied by existing indigenous sovereigns. Many before Seth Davis, including Milner Ball, Philip Frickey, Nell Newton, David Wilkins, and Robert Williams, have wrestled with this founding constitutional evil. Several things, however, distinguish Professor Davis’s American Colonialism and Constitutional Redemption. The result is an important addition to the canon of federal Indian law.

First, Professor Davis engages with theorists outside federal Indian law to an unusual degree. Professor Davis specifically takes on fiduciary theorists like Evan J. Criddle and Evan Fox-Decent, but also engages with other constitutional theorists like Sanford Levinson, Aziz Rana, and Jack Balkin; political theorists like Carole Pateman, Jennifer Nedelsky, and Robin West; race theorists like Dorothy Roberts and Miguel de la Torre; and even political figures like President Barack Obama and Reverend Adam Clayton Powell Sr. While other scholars of federal Indian law have written noteworthy works in other areas, few have so deftly connected their work to debates outside the field. The result is an article that helps to bring the law of Native people into mainstream debates, and out of the niche in which it is sometimes cabined.

Second, Professor Davis, more convincingly than most, rebuts the notion that either a federal trust responsibility or a treaty relationship can redeem the constitution of its colonial sins. Although (as highlighted in the work of Kevin Washburn recently praised in Jotwell) the federal-Indian trust relationship has been transformed from a paternalistic one to serve tribal self-determination, Professor Davis notes that the fundamentals of the trust make it ill-suited to this goal. Trusts, he writes, are paradigmatically written by settlors without the consent of their beneficiaries, and depend on the control of the trustee and inability of the trust beneficiary to manage its own affairs. As such, the trust is fundamentally at odds with the principles of tribal self-determination and agency. Further, after pointing out the limited efficacy of the trust concept in restraining or punishing the federal government, he argues that, quoting Rev. Powell, it is a kind of “cheap grace,” providing absolution without demanding anything meaningful from the colonizers.

Although other scholars have offered treaty relationships as a basis for a more positive relationship, Professor Davis points to their limitations as well. Treaties were drafted by U.S. negotiators, often agreed to from positions of little choice, and left out many tribes with whom matters could be settled outside of treaty relationships. Relying on written treaties is a futile effort to use the master’s tools to dismantle the master’s house.

Third, Professor Davis offers a new vision of the tribal-federal constitutional relationship, a model of “relational consent.” Drawing on relational contract theorists, he argues that the tribal-federal relationship should be understood not through formal treaties but through relationships based on mutual respect. This understanding finds support in history and indigenous law as well as theory. As Rob Williams and others have argued, for over a century relationships between tribal and Euro-American governments were forged through a cross-cultural diplomacy that incorporated indigenous concepts of political relationship through metaphoric kinship. It also is consistent with (some) existing constitutional precedent, which has combined historical practice and the spirit of Indian treaties to create a protected status for tribal sovereignty.

Professor Davis’s vision is obviously inconsistent with another long-established constitutional principle: that the federal government has plenary power to remove the sovereign and property rights tribes retain, so long as it does it clearly enough.1 Is there any chance of undermining this principle? The demise of constitutional precedents like Scott v. Sanford and Plessy v. Ferguson provide some hope of such a constitutional revolution. But those transformations took a Civil War on one side and the spectacle of massive resistance on the other to occur. Present politics, moreover, show how little redeemed we still are from the original sins of racial inequality. I confess I am skeptical that the plenary power doctrine will ever be overruled, no matter how many fine articles we write. But short of that constitutional revolution, Professor Professor Davis’s vision provides us with a new way to understand the sometimes paradoxical constitutional position of tribal nations. I believe this article will become a touchstone in federal Indian law and critical constitutional theory, and hope its constitutional vision will be incorporated by judges and politicians who make the law of indigenous peoples.

Cite as: Bethany Berger, Can the Constitutional Sin of Colonialism be Redeemed?, JOTWELL (July 6, 2018) (reviewing Seth Davis, American Colonialism and Constitutional Redemption, 105 Cal. L. Rev. 1751 (2018)), https://lex.jotwell.com/can-the-constitutional-sin-of-colonialism-be-redeemed/.

The Federal-Tribal Relationship: The View from the Executive Branch

Kevin K. Washburn, What the Future Holds: The Changing Landscape of Federal Indian Policy, 130 Harv. L. Rev. F. 200 (2017).

In 2016, many thousands of Native people and their supporters traveled from across the country to protest construction of the Dakota Access Pipeline in North Dakota. It was the greatest display of unified Indian activism since the standoffs at Alcatraz and Wounded Knee. While Dakota Access set dogs on the protesters and North Dakota almost enacted a statute that would immunize those injuring protesters from liability, the federal government had a role as well. Because the pipeline ran over a section of federally-owned land, the U.S. had to grant an easement to build it, and needed to consider the impact on the Standing Rock Sioux, including sacred sites, drinking water, and treaty rights, before doing so. In the waning days of the Obama Administration, the EPA determined that it had not sufficiently considered all factors, and decided to delay the permit. In the first few days of the Trump Administration, the EPA reversed, ruling that the pipeline could go forward. After the pipeline was built (and already had its first leaks), a federal district court held that the U.S. had not sufficiently considered treaty rights and environmental concerns. But the court refused to halt the pipeline while considering the remedy, so gas continues to flow, and small leaks continue to occur.

As at Standing Rock, the federal government has tremendous power over the things most important to Native people. Five decades into the self-determination era, tribes still depend on the federal government to approve, regulate, or fund what tribes do with their businesses, land, natural resources, sacred sites, and police and social welfare services. The administration of this federal role is in these matters is far from the common law doctrines that occupy most Indian law professors. Not so for Professor Kevin Washburn. Washburn recently returned to academia after several years as the Assistant Secretary of Indian Affairs, where he struggled first hand with the factors governing federal decision-making. What the Future Holds: The Changing Landscape of Federal Indian Policy benefits from this experience with an unusually nuanced and informed perspective on the federal administration of the federal-tribal relationship.

From the founding era to today, Supreme Court opinions, statutes, and executive documents have referred to the United States as a trustee to Indian tribes. As Professor Washburn says, the implicit paternalism of this idea has always fit uncomfortably with the concept of tribal sovereignty, and particularly so in the modern era of self-determination. Washburn also notes that the Supreme Court has pared away at the legal power of the trust relationship, limiting the power of tribes to demand compensation for federal actions taken with conflict of interests, or to subject the federal government to other common-law trust obligations.

But as the paternalistic rationale and legal enforceability of the trust responsibility has faded, Washburn argues, the trust responsibility has been transformed. The federal government is now less the manager than the “principal underwriter” of tribal affairs. Today, most services formerly performed by the federal government are managed by Indian tribes with federally-funded self-determination contracts. This shift has resulted in more effective, culturally appropriate, and profitable results for notoriously mismanaged programs. But it has also resulted in new questions about the role of the federal government.

First, some may ask whether the trust responsibility “to provide funding to tribes to meet federal responsibilities” can continue as the paternalistic elements of the trust responsibility diminish. For Washburn, the answer is “of course.” Washburn argues that federal funding can be seen as a moral “rent” on the lands and sovereignty taken from tribal nations, and this, rather than a paternal noblesse oblige was how Chief Justice Marshall originally conceived it. Because tribal administration of programs for Indians has been proven more effective and efficient than federal or state administration, it also makes fiscal sense. But Washburn notes that even in the face of statutory promises to provide funding, the United States has repeatedly failed to appropriate enough money to fulfill its promises. In response, however, the Supreme Court has developed a new norm strictly holding the government to its fiscal promises to tribal nations.

A larger question arises regarding oversight of tribal governments. The general policy of the federal government today is to avoid interfering with tribal sovereignty. This policy is enshrined in statutes and executive orders, and increasingly expected by tribal nations. But numerous statutes still require federal approval for tribal projects, and the federal government can use this power to delay or shape negotiations so as to favor mining and other interests contracting with tribes. The federal approval power, even when it is not subject to conflicts of interest, adds time and expensive regulatory review to tribal actions. Washburn notes that there is a powerful case that this oversight is inconsistent with self-determination and tribal welfare.

At the same time (and this is one of the unique contributions of the essay), Washburn suggests that increasing tribal self-determination may argue for more federal oversight, not less. First, as we know from Spider-Man, with great power, comes great responsibility. Tribes increasingly have real power over peoples’ lives. In some cases, Washburn speculates, this leads to greater federal accountability.

Despite this, he argues, the need for increased federal oversight may be less compelling that it appears. He investigates three distinct areas of concern.

The most prominent is the headline-making disenrollment of tribal members by some tribes. Washburn notes that although some characterize this crisis as a battle over gaming revenue, those who do so are likely unaware that “at least since the arrival of the Europeans, tribal politics has been a blood sport.” In addition, to the extent that these are battles over gaming revenue, they are battles over a tribe’s own money, and so the case for federal accountability is less than it was in cases like Santa Clara Pueblo v. Martinez, the case that originally established the non-interference rule. Nevertheless, he notes, to the extent such disenrollment violates human rights norms, there may be a case for intervention similar to that for any nation violating human rights.

Washburn also investigates the case for greater intervention in tribal criminal justice systems. One of Washburn’s most important scholarly contributions before entering government service was in making the case for stronger tribal control in this area. Washburn now argues that the push for more tribal law enforcement power comes more from “activists” (and, he doesn’t mention, scholars) than from tribal leaders. Washburn’s original articles contributed to a movement that resulted in recent federal statutes and policies increasing tribal powers of prosecution and punishment. These statutes, however, impose greater federal oversight as a condition of exercising more power. “To exercise greater sovereignty,” Washburn now writes, tribal governments “necessarily must accept … outside interference by the federal government.” The article does not make clear whether Washburn believes these “political compromises” are a good thing or not, but does suggest that his time in power may have softened his prior scholarly stance.

Finally, Washburn discusses an area that has not gained as much public attention: the federal government’s role in land regulation. This is perhaps the most direct instance of the federal trust responsibility, as the federal government still actually owns most of Indian country in trust for either tribes or individual Indians. Washburn notes that the federal trust, and the regulatory apparatus that comes with it, actually reduce the value of land, perhaps a conflict of interest for the trustees. (Incidentally, one of the many contributions of Washburn’s tenure was in lessening this regulatory burden.) Individual allottee interests in free use and alienation of their land may also conflict with those of the other trust beneficiaries, the tribes. Like Jessica Shoemaker’s work (reviewed by Ezra Rosser in Jotwell), Washburn opens a new window into the reality of the trust status of Indian land.

Altogether, the strength of What the Future Holds is in providing new perspectives and asking hard questions rather than in providing answers. It also remains to be seen whether the Trump administration will undermine the new, less-paternalist trust relationship Washburn identifies. My guess is that it may lessen immediate support for tribes, particularly in areas where mining interests and red states argue against tribes, but that the administration’s attention span is too short to significantly change the trajectory of federal policy. But Washburn has identified important things for scholars to think about as we try to influence what the future holds, both for tribal nations and for those they govern.

Cite as: Bethany Berger, The Federal-Tribal Relationship: The View from the Executive Branch, JOTWELL (December 19, 2017) (reviewing Kevin K. Washburn, What the Future Holds: The Changing Landscape of Federal Indian Policy, 130 Harv. L. Rev. F. 200 (2017)), https://lex.jotwell.com/federal-tribal-relationship-view-executive-branch/.

Reclaiming Lone Wolf?

Review of Michalyn Steele, Plenary Power, Political Questions, and Sovereignty in Indian Tribes, 63 UCLA L. Rev. 666 (2016).

In the concentration camps of the Holocaust, a pink triangle marked gay men’s uniforms to indicate why they had been singled out for imprisonment and death. Beginning in the 1970s, LGBT activists reclaimed the pink triangle, transforming it into a symbol of pride and a demand for respect. Like the Nazi use of the pink triangle, the US Supreme Court’s 1903 decision in Lone Wolf v. Hitchcock represents some of the worst oppression of tribal nations in the United States. Rejecting a challenge to involuntary allotment of tribal lands, Lone Wolf declared that the United States had “plenary power” over Indian tribes, and this power was a “political one, not subject to be controlled by the judicial department of the government.” The case was immediately decried as the Dred Scott for Indians, but unlike Dred Scott, much of Lone Wolf remains good law.

In her provocative new paper, Plenary Power, Political Questions, and Sovereignty in Indian Tribes, Michalyn Steele argues for a partial reclaiming of the plenary power and political question doctrines announced in Lone Wolf and other cases. As Steele notes, the doctrines have been “roundly, and rightly” criticized as leaving tribes “vulnerable to unchecked political whim.” In the limited form Steele proposes, however, the doctrines may be a useful check to what she calls the “heads I win, tails you lose” bind tribes face in the courts today.

Steele begins with the observation that the plenary power doctrine appears to be here to stay. Post-Lone Wolf cases establish that Indian affairs legislation is subject to constitutional review, but the constitutional tests are often less stringent in the tribal context. In practice, as Steele writes, “Congress has had a free hand to legislate and regulate with regard to Indian affairs.” Interpretive rules provided one check on this broad power, as cases both before and after Lone Wolf established that courts will interpret federal legislation as removing tribal property or sovereignty rights only if the intent to do so was clear.

Since 1978, however, the Supreme Court has violated the clear congressional intent principle in cases involving tribal jurisdiction. In a series of decisions, the Court has held that tribes lack all criminal jurisdiction over non-Indians, and retain civil and regulatory jurisdiction over non-Indians only in narrow circumstances. None of these decisions are based on express or even implicit statutory prohibitions, but rather on vague, often inaccurate judicial musings on history and federal policy. All of the decisions, moreover, run counter to congressional policy, which has, since the mid-1970s, focused on encouraging and protecting tribal self-government.

This free-ranging judicial intrusion on tribal sovereign authority, Steele argues, should be barred by the political question doctrine. Steele focuses on three of the factors Baker v. Carr announced would determine whether an issue is nonjusticiable: (i) judicial manageability of the standards, (ii) textual commitment to a coordinate branch, and (iii) policy determinations of a kind clearly of nonjudicial discretion. Pointing to the vague tests the Court has announced for when tribes will lack inherent authority (the internal/external relations test, the necessary to protect self-government test, and the inconsistent with dependent status test), and to the divergent and inconsistent results under these tests, Steele argues that there is no judicially manageable standard for divesting tribes of inherent authority. On the textual commitment to a coordinate branch factor, she points to the constitutional commitment of Indian affairs to Congress in the Commerce Clause, and its similarity to the foreign affairs power, which is the most frequent subject of the political question doctrine. Similarly, as to the clearly nonjudicial discretion factor, she argues that the extent of tribal sovereign authority in dealing with non-Indians is at the heart of congressional and executive policymaking, and is an area in which courts should not intrude absent congressional guidance.

Steele’s political question proposal has some support in recent Supreme Court decisions. Nebraska v. Parker 136 S. Ct. 1072 (2016), Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024 (2014), and United States v. Lara, 541 U.S. 193 (2004) (most of the very few cases tribal interests have won in recent years) all endorsed the supremacy of Congress and the limited role for the judiciary in limiting tribal authority. Steele’s proposal also accords with recent cases requiring clear evidence that Congress intended to intrude on either foreign or state sovereignty. See Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010) (foreign authority); Bond v. United States, 134 S. Ct. 2077 (2014) (state authority).

Steele notes possible objections to her proposal. In particular, we should condemn any doctrine that would remove from tribal nations, or any group, the protections of judicial review. But invoking political question in this limited context does not unjustly interfere with judicial review. It does not say that the Court may not act to determine whether congressional action violates the Constitution, or whether executive action violates statutory law. It instead puts a stop to a new threat to tribal sovereignty: judicial intrusion untethered from guidance from the branches constitutionally entrusted with making federal Indian policy. One branch of government—Congress—already has plenary power. The judiciary cannot claim its own authority to remove tribal sovereignty as well.

Cite as: Bethany Berger, Reclaiming Lone Wolf?, JOTWELL (August 9, 2016) (reviewing Review of Michalyn Steele, Plenary Power, Political Questions, and Sovereignty in Indian Tribes, 63 UCLA L. Rev. 666 (2016)), https://lex.jotwell.com/reclaiming-lone-wolf/.

Not So Schizophrenic: The Founders’ Understanding of Indian Affairs and the Constitution

Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012 (2015).

Federal Indian law fits awkwardly in American constitutional doctrine, so much so that Justice Clarence Thomas has declared it “to say the least, schizophrenic.” Tribal nations are sovereign to some degree—they are not bound by the U.S. Constitution, possess substantial sovereign immunity, have police departments, courts, and broad regulatory powers, and hundreds of U.S.—tribal treaties still influence federal law. Yet the federal government has tremendous power over tribes and their members, states have significant jurisdiction in their territories, and tribal jurisdiction over non-tribal citizens is limited. Only a few words in the Constitution directly reference Indians or tribes at all. Obsolete phrases in the Apportionment Clause and Fourteenth Amendment exclude “Indians not taxed” from the population for legislative apportionment. More importantly, the Indian Commerce Clause grants Congress the power to “regulate commerce . . . with the Indian tribes.” Modern Supreme Court decisions locate Congress’ broad authority in Indian affairs in the Clause; more recently, Justice Thomas and some scholars have argued that this power is narrowly limited to trade; while other scholars argue that the Clause provides a constitutional basis for both state exclusion from Indian affairs and tribal sovereignty.

In a groundbreaking new article, Beyond the Indian Commerce Clause, Gregory Ablavsky rejects all sides of this debate. Ablavsky convincingly argues that although a narrow construction of commerce is not consistent with original understanding, the broader implications of the Indian Commerce Clause are deliberately ambiguous. Following an emerging approach to constitutional history, Ablavsky looks beyond the words of the Clause and its limited history to a greater range of constitutional actors and a longer temporal context. Canvassing statements and correspondence by the Washington administration, state officials, and others, Ablavsky argues that the founders located the Indian affairs power in the general constitutional status of the United States, and particularly the interplay of the nation’s military, territorial, commercial, and diplomatic affairs powers. (For the ways that concerns about Indian affairs affected the formulation of these constitutional powers, see Ablavsky’s The Savage Constitution, 63 Duke L.J. 999 (2014).)

The founders’ more holistic understanding of the constitutional source of the Indian affairs power helps explain some perplexing aspects of modern federal Indian law, and provides reasons to challenge some others. First, the historical evidence reveals a general agreement that federal Indian affairs power was exclusive of state authority, similar to the foreign relations power.   This helps normalize some cases regarding state jurisdiction in Indian country, which appear to draw from ordinary preemption analysis, but whose results bear more resemblance to the field preemption applied in matters affecting foreign relations.

Second, the evidence provides a constitutional basis for the status of Indian tribes as at once sovereign and subordinate, or, as Justice Marshall declared in Cherokee Nation v. Georgia, “domestic dependent nations.” The federal government recognized tribal nations as sovereigns, drawing on its diplomatic relations and military power to deal with them, and recognizing their independence from ordinary domestic legislation. At the same time, the government asserted that its own status as a sovereign with control over territory limited tribal sovereignty, making tribes less than foreign nations. As a result, tribes could not enter into diplomatic relations with other nations, and the U.S. had ultimate authority over transfers of land by the Indian tribes. Thus both tribal inherent sovereignty and congressional plenary power—the inspiration for Justice Thomas’ diagnosis of schizophrenia—originate in the law of nations and its incorporation in constitutional practice. The original understanding of tribal sovereignty, moreover, suggests that modern Supreme Court decisions err in claiming that that the dependent status of Indian tribes is inconsistent with their exercise of jurisdiction over non-Indians in their territory.

Others have made similar arguments regarding the constitutional basis for federal Indian law (and if there is one flaw in the article it its failure to sufficiently acknowledge the extent to which this is true) but Ablavsky’s historical grounding of these arguments is unprecedented. This may be the most important article on the Constitution and federal Indian law since Philip Frickey’s Marshalling Past and Present: Colonialism, Constitutionalism, And Interpretation in Federal Indian Law, 107 Harv. L. Rev. 381 (1993). It is relevant to many of the debates and doctrines in federal Indian law, and may well help generate new ones. It is worth reading for all interested in federal Indian law or constitutional history.

Cite as: Bethany Berger, Not So Schizophrenic: The Founders’ Understanding of Indian Affairs and the Constitution, JOTWELL (May 26, 2015) (reviewing Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012 (2015)), https://lex.jotwell.com/not-so-schizophrenic-the-founders-understanding-of-indian-affairs-and-the-constitution/.