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Excerpted From: Diane P. Wood, Indian Sovereignty in Context, 2022 Wisconsin Law Review 211 (2022) (77 Footnotes) (Full Document)


DianePWoodAlmost 200 years ago, in the Cherokee Nation cases, Chief Justice John Marshall famously described Indian tribes as “domestic dependent nations.” It's a catchy phrase, but it falls far short of a clear description of the complex relationship between the Indian tribes, bands, nations, and similar groups in the territory encompassed by the United States and the government of that territory. It also elides the equally complex issue of the relationship between Indian tribes and the constituent states of the United States. In the end, the problem may be that modern notions of self-determination, integrity of national boundaries, and conquest simply do not map well onto the history of our part of the North American continent from the late fifteenth century to the present. The best we can do is to articulate rules, canons of interpretation, and principles from the law that has developed in the hope of clarifying and settling the law we now have.

No one could have undertaken that task with more sensitivity, expertise, and objectivity than the Reporters of the American Law Institute's soon-to-be-published Restatement of the Law of American Indians--Professors Matthew L.M. Fletcher and Wenona T. Singel and Attorney Kaighn Smith, Jr. Indeed, this may have been one of the most challenging Restatements the ALI has ever undertaken. Most of the time, the common law (or interstitial law relating to a statute) has developed organically in the state and federal courts, and the job of the Reporters is to distill the rules that have emerged. This isn't always easy, of course: sometimes no single rule floats to the top of the barrel, and so the Reporters must choose the one that seems best to represent the state of the law. Sometimes (though less often) the Reporters propose that the ALI adopt a minority position that is better reasoned or that seems to capture a trend of thinking.

I. Challenges for this Restatement

Our Reporters for the AmericanIndian project had no such straightforward task. This becomes apparent immediately when one reads the “Reporters' Introduction” to the work as a whole. Rather than a collection of judges and legislatures all dealing with a more-or-less agreed-upon subject matter (e.g., torts, property, contracts, conflicts, and so on), we find wildly differing philosophies, policies, and goals. The Reporters identify no less than seven periods through which the law has moved: (1) colonial, (2) American treaty, (3) removal, (4) assimilation and allotment, or reservation, (5) reorganization, (6) termination, and, finally, (7) self-determination. And this does not seem to be one of those situations in which, as Dr. Martin Luther King, Jr. stated, “the arc of the moral universe” has consistently “ben[t] toward justice,” no matter how satisfactory we might find the final stage of self-determination. Instead, regrettably, through much of the history of Indian law, terrible things were happening on the ground, even while judges purported to be following rules of law and canons that were supportive and respectful toward Indian people, Indian tribes, and Indian country.

One lens through which we might productively view this complex history is that of sovereignty. Both in the United States and globally, recognition that sovereignty is no longer (if it ever was) an attribute that attaches only to defined nation-states is commonplace. Dean (then professor) Michael P. Scharf captured this point nicely in a couple of quotations with which he began an article entitled Earned Sovereignty: Juridical Underpinnings. The first, from Stephen Leacock, was short and to the point: “Sovereignty either is or is not.” The second, from former U.N. secretary-general Boutros Boutros-Ghali, was this: “It is undeniable that the centuries-old doctrine of absolute and exclusive sovereignty no longer stands, and was in fact never so absolute as it was conceived to be in theory.”

What is true at the international level can be even more true within a country. The United States, for example, must consider at least the following permutations of sovereignty: that of the federal government itself; that of other countries in the world; that of the constituent states; and (of course) that of the Indian tribes. Fine lines must be drawn if one is to avoid messy overlaps of sovereignty, which in turn can create legal uncertainty. Justice Anthony Kennedy recognized as much in the case of U.S. Term Limits, Inc. v. Thornton, which concerned a state's ability to impose additional or different qualifications on candidates for the U.S. House of Representatives or Senate. The Supreme Court rejected Ohio's effort to add term-limit restrictions on candidates for those offices on the ground that giving this power to the states would be inconsistent with the U.S. Constitution's vision of a uniform national legislature. But it was not Justice Stevens's opinion for the majority that stuck with people. It was Justice Kennedy's concurrence, where (speaking of the states) he wrote that “[f]ederalism was our Nation's own discovery. The Framers split the atom of sovereignty.” Evocative language indeed, especially if we contemplate the violence that typically attends atom-splitting.

There is no doubt that Indian tribes today enjoy certain attributes of sovereignty. And this is not new. The law of nations informed early encounters between the English and continental European settlers. Compacts between the two groups took the form of treaties; and for their own purposes, tribes, bands, nations, and comparable groups governed themselves and managed external relations with others. But, as chapter 1 of the new Restatement makes clear, there is a competing model that stands in serious tension with the sovereignty concept: that of a guardian and ward, trustee and beneficiary, or, however phrased, one entity that depends in significant ways on another. There may come a day, even if it is not this day, when we finally need to decide which model is the right one for Indian law.

[. . .]

Last, let me flag some problems that the Restatement was not in a position to resolve definitively. The first relates to a favorite topic of mine, extraterritoriality, which operates in fascinating ways with respect to tribal authority on tribal land. It raises the question of the importance of a territorial link between an action and the prosecutor (or regulator) when it comes to a tribe's legislative and adjudicative authority. Like nearly everything else in Indian law (or so I have come to think), this becomes more complex each time you peel off a layer.

Here are some points that caught my attention. First, relative to other sovereigns, Indian tribes do not enjoy as much power over civil regulatory matters in their own territory. As the Restatement points out in section 29, there is a presumption that (U.S.) states may regulate nonmembers of the tribe even within Indian country. And the tribe's authority to regulate nonmembers is restricted. Some limits apply even on tribal land, and limits exist on fee land under the Strate v. A-1Contractors decision. At the same time, off the reservation the tribes have surprisingly robust authority to do things that look like civil regulation. For instance, as Herrera v. Wyoming shows, tribes may have the right to engage in off-reservation hunting, fishing, and other usufructuary activities by virtue of their treaties with the United States. The exercise of these rights can lead to mind-twisting interactions among federal, state, and tribal law. Water and air rights are also common subjects. For instance, the litigation in the Seventh Circuit about the threat posed by the Asian carp to the Great Lakes system was brought not only by states, but also by a tribe no one thinks that any one state, or any one tribe, has full territorial jurisdiction over the Lakes.

The second question relates to the Cayetano/Mancari problem: Is Indian status exclusively political, or are there enough racial or ethnic dimensions to it? Will the Supreme Court decide to revisit Morton v. Mancari and take the approach indicated in Rice v. Cayetano, thereby striking down legislation that singles out Indian tribes (as a group or individually) or Indians (as a group or individually) for special treatment? If the Court were to take such a step, the Indian Child Welfare Act would be at risk, as would countless other legislative enactments. Yet even though the Bill of Rights does not directly apply to Indians, we still have the Indian Civil Rights Act (ICWA), and it states that “[n]o Indian tribe in exercising powers of self-government shall ... deny to any person within its jurisdiction the equal protection of its laws.” Obviously, ICWA is not a tribal law; it is an act of Congress. But as an act of Congress, it must pass muster under the Fifth Amendment, including the equal protection “dimension” of the Fifth Amendment.

Finally, the Restatement invites a comprehensive discussion about the best way to reconcile the two principles underlying Indian sovereignty: first, the understanding that, even after all these years of life as “dependent domestic sovereigns,” the emphasis should still be on the word “sovereign,” and second, the canons relating to the interpretation of both treaties and statutes dealing with Indians in a way that emphasizes the word “dependent” instead.

It is hard to walk away from this Restatement without a sense that, of the seven eras the Reporters identified, the present Self-Determination Age comes as close as is possible to where we should be, both for the Indians and Indian tribes within this country and for the rest of the population. The idea of self-determination fits comfortably within broader human rights instruments, such as the Universal Declaration of Human Rights and the Covenant on Civil and Political Rights. I hope that self-determination is working the way it should, and I also hope that over time, more people will find their way to cultural, social, and economic security so that these communities can take their place in our broader society.

It has been a pleasure learning about Indian law from this project, and I once again thank the Reporters for a magnificent job, the ALI for taking on such an ambitious work, and both the Wisconsin Law Review and Indigenous Law Student Association for putting all of this together.

Judge, U.S. Court of Appeals for the Seventh Circuit.

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