Abstract

Excerpted From: Kirsten Matoy Carlson, Bringing Congress and Indians Back into Federal Indian Law: the Restatement of the Law of American Indians, 97 Washington Law Review 725 (October, 2022) (278 Footnotes) (Full Document)

 

KirstenMatoyCarlsonFederal Indian law underwent a fundamental and dramatic change fifty years ago. Prior to 1970, policymakers had privileged non-Indian voices in the development of federal Indian law for decades to devastating effect. In the late 1960s, Executive Branch officials and members of Congress started listening to tribal governments and American Indian and Alaska Native organizations when making laws impacting Indians and Indian governments. The result was a complete reversal of federal Indian law and policy. President Nixon and then Congress repudiated the Termination Policy, meant to disestablish tribal governments and assimilate tribal citizens, and adopted the Tribal Self-Determination Policy, which promotes tribal sovereignty by transferring control over federal programs to tribal governments. In adopting the Tribal Self-Determination Policy, Congress returned to the foundational principles of federal Indian law. It embarked on a renegotiation of its ongoing relationship with Native Nations. These efforts have led to a modern federal-tribal relationship that acknowledges the sovereign governmental status of Native Nations and the federal government's duty to protect them.

Many court decisions, however, have not lived up to these changes. Rather, led by the Supreme Court, federal and state courts have frequently diverged from congressional Indian policy and foundational principles of federal Indian law, including their own past precedents. They have ignored the modern federal-tribal relationship forged by tribal governments and Congress over the past five decades and the lived experiences of Native peoples more generally. As a result, federal Indian law has proceeded along two seemingly separate tracks as Congress has continued to affirm and extend tribal sovereignty and participation in lawmaking while the courts often undercut it. This divergence has led to fifty years of inconsistent and incoherent decision making by courts that has left federal Indian law in disarray and far more complicated than it needs to be.

In this Article, I argue that the Restatement of the Law of American Indians retells federal Indian law in a way that allows for the reuniting of these two strains of federal Indian law. The Restatement departs from many commentaries on federal Indian law, which focus on decisional law, by framing federal Indian law as statutory law. It views federal Indian law through the lens of how Congress and Indians have remade the federal-tribal relationship and substantive law over the past fifty years. In short, it brings two major players in the creation of federal Indian law--Congress and tribal governments--back into the picture and reiterates for courts the central role that they play in making federal Indian law. It then directs courts to follow Congress's lead and act consistently with congressional policy and foundational principles of federal Indian law.

In Part I, I recount how federal Indian law has developed along two separate lines over the past fifty years. Section I.A relies on my previous research to show that since the 1970s, Congress has responded to increased tribal advocacy by adopting a largely consistent policy based on foundational principles of federal Indian law. Scholars have identified the foundational principles of federal Indian law as:

• Tribes are governments with inherent sovereign powers, not delegated or granted by the United States;

• The U.S. Constitution gives Congress full control over Indian affairs-- including authority to limit tribal powers;

• The federal government holds responsibilities to Indian tribes and individual Indians known as the trust relationship;

• Indian Nations retain powers unless Congress has expressed clear and plain intent to abrogate them; and

• State governments have no authority to regulate Indian affairs absent express Congressional delegation or grant.

In the past five decades, Congress has renewed its relationship with Native Nations and substantively changed federal Indian law to recognize these foundational principles. Through a network of statutes, Congress has strengthened the inherent governmental authority possessed by tribal governments and the trust relationship between tribal and federal governments. It has also acknowledged its own limited powers to abrogate tribal authority.

This shift has been procedural as well as substantive. Congress has sought to maximize Indian participation in the legislative process leading to a lawmaking process inclusive of Native peoples. The era of Congress and the Executive Branch making laws for Native peoples without Native input has ended. It has been replaced with a process aimed at making laws with Native peoples. The inclusion of Native peoples in the lawmaking process has contributed to the substantial changes already mentioned, namely the development of a body of federal statutory law and policy that fosters the foundational principles of federal Indian law.

Section I.B shows that the courts have not kept up with this shift in federal Indian law. In contrast, court decisions have departed from the foundational principles of federal Indian law, congressional policy, and their own past precedents. They have sought to replace Congress as the primary maker of federal Indian law, limited the impact of laws enacted by Congress to further tribal sovereignty, continued to rely on laws repudiated by Congress, and ignored the canons of statutory construction. Some recent Supreme Court opinions can be interpreted as seeking to realign the Court with foundational principles and congressional policy, but fifty years of inconsistent and incoherent decision making by federal and state courts have left court-made federal Indian law in disarray and far more complicated than it needs to be.

Part II argues that the Restatement of American Indian Law reframes federal Indian law so that it reflects the modern federal-tribal relationship negotiated by tribal governments and Congress over the past fifty years. The modern federal-tribal relationship emphasizes the negotiation of federal Indian law by tribal governments and Congress, recognizes tribal sovereignty, and implements the federal trust relationship with tribal governments and individual Indians. The federal statutory law and policy enacted as a result of this relationship adheres to foundational principles of federal Indian law. The Restatement retells federal Indian law to promote this modern relationship, to reaffirm foundational principles of federal Indian law, and to align the law with congressional policy. The result is a vision of federal Indian law that is more coherent, easier to apply, and more reflective of the state of affairs in Indian Country.

The Restatement then instructs courts to follow this vision of federal Indian law. Consistent with other American Law Institute Restatements, the Restatement of the Law of American Indians is “primarily addressed to courts and aim[s] at clear formulations of common law and its statutory elements, and reflect[s] the law as it presently stands or might appropriately be stated by a court.” As a directive to courts, it seeks to resolve the tensions between statutory and decisional law that currently exist in federal Indian law. The Restatement instructs courts to act consistently with the modern federal-tribal relationship by applying foundational principles of federal Indian law and congressional policy.

[. . .]

Over the past fifty years, federal Indian law has developed along two divergent paths. In response to tribal advocacy, Congress renewed its government-to-government relationship with tribal governments, acknowledging inherent tribal sovereignty and the United States' trust obligations to Native peoples. As a result, Congress has engaged tribal governments in the lawmaking process. Together they have crafted a network of statutes based on foundational principles of Indian law and reflective of tribal governments' growing capacities to serve their communities. In contrast, courts have departed from foundational principles of Indian law and congressional policy, often to the detriment of the modern federal-tribal relationship committed to by both tribal governments and Congress.

The Restatement of the Law of American Indians provides an opportunity to reconcile these two conflicting visions of Indian law. It relies on how tribal governments and Congress have reworked the federal-tribal relationship, congressional policy, and statutory law to restate federal Indian law. In short, it brings two major players in the creation of federal Indian law-- Congress and tribal governments--back into the picture and reiterates for courts the central role that they play in making federal Indian law. The Restatement directs courts to follow foundational principles and congressional policy. As a result, it provides courts with a vision of federal Indian law that is more coherent, easier to apply, and more reflective of the state of affairs in Indian Country than the decisional law adopted by the Supreme Court in the past fifty years.


Professor, Wayne State University Law School. Ph.D. 2007 (Political Science), The University of Michigan; J.D. 2003, The University of Michigan Law School; M.A. 1999 Victoria University of Wellington, New Zealand (Fulbright Scholar); B.A. 1997, The Johns Hopkins University.