Indigenous, Indian, and Aboriginal Law Commons^™

Haaland V. Brackeen—A Window Into Presenting Tribal Cases To The Court, Ian Heath Gershengorn

Connecticut Law Review

In this Essay, as I did at the Connecticut Law Review’s Symposium, I draw on my experience representing Tribes in Haaland v. Brackeen to discuss more broadly the effective presentation of tribal arguments to the Court. I touch briefly on four main topics. First, I discuss how we collaborated with amici to ensure that the Court would have the full context as it considered the issues in Brackeen. Second, I discuss how we thought about preparing for the argument and the particular importance of understanding the practical operation of the Indian Child Welfare Act. Third, I offer a few observations …

Interrogating Haaland V. Brackeen: Family Regulation, Constitutional Power, And Tribal Resilience: The Connecticut Law Review Symposium, Casey M. Corvino, Julia R. Vassallo

Connecticut Law Review

In October 2023, the Connecticut Law Review hosted the Symposium “Interrogating Haaland v. Brackeen: Family Regulation, Constitutional Power, and Tribal Resilience.” The symposium was centered on the state of federal Indian law in the wake of the Brackeen decision. This decision was a victory for Indigenous families and Native nations as it left the Indian Child Welfare Act (ICWA) unscathed and affirmed the constitutional relationship between tribal nations and the United States. However, threats to tribal sovereignty continue as a handful of states and interest groups continue to seek ways to challenge tribal authority and federal laws that support it. …

The Original Meaning Of Commerce In The Indian Commerce Clause, Gregory Ablavsky

Connecticut Law Review

In Haaland v. Brackeen, the Supreme Court returned to the foundational question of federal authority over relations between the United States and Native nations, long known as “Indian affairs.” The decision reaffirmed well-established precedent affirming broad federal authority in the area, but it also underscored ongoing disagreement, as Justices Gorsuch and Thomas offered lengthy and dueling investigations of the original understanding.

This Essay explores one aspect of that history: the original meaning of “commerce” in the Indian Commerce Clause. Nearly a decade ago, I wrote an article that sought, as its title indicated, to move “beyond the Indian Commerce Clause.” …

Haaland V. Brackeen And Mancari: On History, Taking Children, And The Right-Wing Assault On Indigenous Sovereignty, Laura Briggs

Connecticut Law Review

In June 2023, the Supreme Court upheld the constitutionality of the Indian Child Welfare Act (ICWA) of 1978 in Haaland v. Brackeen, making it harder for (some) Indigenous families and communities to lose their children. The decision left one key question unanswered, however: whether protections specifically for American Indian households served as an illegitimate “racial” preference. Justice Amy Coney Barrett’s opinion for the majority argued that the petitioners lacked standing to raise this issue. Thus, the Court left the door open to continuing challenges by those who have an interest in using ICWA’s cute children and clean-cut evangelical Christian parents …

Nondelegation And Native Nations, Seth Davis

Connecticut Law Review

There is no nondelegation doctrine for Native nations, nor should there be one even if the Supreme Court revives the nondelegation doctrine for federal agencies and private parties. The Court has never struck down a statute on the ground that it delegated legislative power to a Native nation. Instead, it has held that Congress may recognize the sovereignty of Native nations and that their independent authority sustains statutes that rely upon Native governments to implement policy goals that they share with the United States. The Court’s deferential approach is consistent with the rational-basis standard of review that applies to Indian …

Mohegan Women, The Mohegan Church, And The Lasting Of The Mohegan Nation, Bethany Berger, Chloe Scherpa

Faculty Articles and Papers

No abstract provided.

Savage Equalities, Bethany Berger

Faculty Articles and Papers

Equality arguments are used today to attack policies furthering Native rights on many fronts, from tribal jurisdiction over non-Indian abusers to efforts to protect salmon populations in the Pacific Northwest. These attacks have gained strength from a modem movement challenging many claims by disadvantaged groups as unfair special rights. In American Indian law and policy, however, such attacks have a long history, dating almost to the founding of the United States. Tribal removal, confinement on reservations, involuntary allotment and boarding schools, tribal termination-all were justified, in part, as necessary to achieve individual Indian equality. The results of these policies, justified …

Hope For Indian Tribes In The Us Supreme Court: Menominee, Nebraska V. Parker, Bryant, Dollar General … And Beyond, Bethany Berger

Faculty Articles and Papers

There has long been concern that the U.S. Supreme Court is hostile to Indian tribes. Between 1990 and 2015, tribal interests lost in 76.5% of Supreme Court cases distinctly affecting them; the loss rate rose to 82% in the first decade of the Roberts Court. With four Indian law cases on the docket last year, Native communities were poised for disaster. Newspapers speculated on why tribes could not win in the Supreme Court. By the end of June 2016, however, tribal interests had lost just one case, won two, and the Court split four-four in a fourth, affirming a lower …

Diversely Native, Bethany Berger

Faculty Articles and Papers

No abstract provided.

Birthright Citizenship On Trial: Elk V. Wilkins And United States V. Wong Kim Ark, Bethany Berger

Faculty Articles and Papers

In the summer of 2015, the majority of Republican candidates for president announced their opposition to birthright citizenship. The constitutional dimensions of that right revolve around two cases decided at the end of the nineteenth century, Elk v. Wilkins (1884) and United States v. Wong Kim Ark (1898). The first held that an American Indian man born in the United States was not a citizen under the Fourteenth Amendment; the second, that a Chinese American man born in the United States was indeed a citizen under the amendment. This Article juxtaposes the history of these decisions. By showing the distinctive …

Review Of Colin Calloway, Pen And Ink Witchcraft: Treaties And Treaty Making In American Indian History, Bethany Berger

Faculty Articles and Papers

No abstract provided.

The Promise And Perils Of Renewable Energy On Tribal Lands, Sara Bronin

Faculty Articles and Papers

No abstract provided.

Criminal Law’S Tribalism, Molly Townes O'Brien

Connecticut Public Interest Law Journal

No abstract provided.

Williams V. Lee And The Debate Over Indian Equality, Bethany Berger

Faculty Articles and Papers

Williams v. Lee (1959) created a bridge between century-old affirmations of the immunity of Indian territories from state jurisdiction and the tribal self-determination policy of the twentieth century. It has been called the first case in the modern era of federal Indian law. Although no one has written a history of the case, it is generally assumed to be the product of a timeless and unquestioning struggle of Indian peoples for sovereignty. This Article, based on interviews with the still-living participants in the case and on examination of the congressional records, Navajo council minutes, and Supreme Court transcripts, records, and …

Reconciling Equal Protection And Federal Indian Law, Bethany Berger

Faculty Articles and Papers

In this essay for a festschrift in celebration of Philip Frickey and his work, I show how equal protection and federal Indian law can be reconciled without succumbing to what Professor Frickey has called the seduction of artificial coherence. Federal Indian policies increasingly face arguments that, in providing special treatment for individuals and groups defined in part by descent from indigenous tribes, they violate the requirement of equal protection before the law. I argue that such arguments ignore the congruence of federal Indian policy and equal protection as a matter of constitutional norms, constitutional history, and constitutional text. Federal Indian …

The Unfulfilled Promise Of The Indian Commerce Clause And State Taxation, Richard Pomp

Faculty Articles and Papers

The Constitution gives Congress the right to “regulate Commerce . . . with the Indian tribes.” Has the Indian Commerce Clause achieved its purpose? Have the Courts interpreted the Clause consistent with Congressional intent? I argue that the answer is, disappointingly, “no.”

The Supreme Court has emasculated and denigrated the Indian Commerce Clause, preventing implementation of the Founders’ vision. The Court has refused to use the Clause as a shield against state taxation.

Chief Justice John Marshall had the opportunity in 1832 in Worcester v. Georgia to shape the Clause into a powerful doctrine. As a ratifier, he was privy …

Liberalism And Republicanism: In Federal Indian Law, Bethany Berger

Faculty Articles and Papers

This essay shows the ways that, despite apparent contradictions, tribal claims fit within the liberal and republican strands of American democratic theory. Critics of tribal sovereignty and, I believe, the modern Supreme Court, are influenced by the seeming conflict between tribal interests and a liberal philosophical framework. I argue that properly understood, most tribal claims do fit within classical liberal theory, with its emphasis on equality and freedom. It is true that some tribal claims are distinctly those of groups or peoples, and so cannot be adequately captured by an individualist liberal framework. Drawing on the later work of John …

Can A State Tax The Fuel That Is Sold By Non-Indian Distributors To A Tribal Gas Station, Bethany Berger

Faculty Articles and Papers

No abstract provided.

Indigenous Self-Determination In Latin America, Ángel Oquendo

Faculty Articles and Papers

No abstract provided.

Justice And The Outsider: Jurisdiction Over Nonmembers In Tribal Legal Systems, Bethany Berger

Faculty Articles and Papers

Over the last quarter century, the Court has progressively limited tribal jurisdiction over both non-Indians and Indians who are not members of the tribe. The Article examines these decisions to show that they owe less to established Indian law doctrine than to two assumptions: first, that tribal courts will be unfair to outsiders and second, that jurisdiction over outsiders has little to do with tribal self-government. It then tests these assumptions against an examination of all cases decided by the Navajo Nation appellate courts over the last thirty-five years and the history and contemporary situation of tribal legal systems. This …

"Power Over This Unfortunate Race," Race, Power And Indian Law In U.S. V. Rogers, Bethany Berger

Faculty Articles and Papers

In 1846, the Supreme Court held in United States v. Rogers that a white man who had become a citizen of the Cherokee Nation through marriage was not an Indian for purposes of federal criminal jurisdiction. This article examines the extensive fabrications of law and fact that underlie the decision, and its part in a campaign by the executive branch to increase federal power over Indian people. The campaign involved the Attorney General of the United States arguing before the Supreme Court for the right to prosecute a man that had died ten months earlier. More profoundly, the campaign was …

Indian Policy And The Imagined Indian Woman, Bethany Berger

Faculty Articles and Papers

In this contribution to the symposium on Santa Clara Pueblo v. Martinez held by the Tribal Law Center at the University of Kansas, I reflect (with pictures!) on the role of women in federal American Indian policy and tie this history to current debates about the Martinez decision. I argue that the perception by non-Indians that they were riding to the rescue of oppressed and exploited Indian women was always a powerful justification for Indian policy, but that the Indian women whose plight called out for European and American protection were not real women, but were instead imagined by the …

United States V. Lara As A Story Of Native Agency, Bethany Berger

Faculty Articles and Papers

In this contribution to the University of Tulsa's symposium on United States v. Lara (2004), I tell the history of Lara as a story of unified agency by Indian peoples and suggest that it is part of a broader transformation in the relationship of Indian people to Indian law. In United States v. Lara, the Supreme Court affirmed congressional power under the constitution to recognize inherent criminal jurisdiction over non-member Indians, although the Supreme Court had declared there was no such jurisdiction as a matter of federal common law. That the jurisdiction was inherent is significant, because it means that …

After Pocahontas: Indian Women And The Law, 1830 To 1934, Bethany Berger

Faculty Articles and Papers

The story of Pocahontas, simultaneously celebrated and contained, presents the favored path for Native American women in the newer legal culture: absorption into the Euro-American race and ultimate disappearance of the non-European element. The alternative path was reserved for women whose assimilation did not reach this level of absorption and disappearance but retained their allegiance to both the Indian and white society. Federal and state legislatures and courts marginalized such women, denied them the treaty rights accorded their male companions, and denied them stable marriages, rights of descent, and the power within the family that they had had within Indian …