Michalyn Steele on Congressional Powers and Sovereignty in Indian Affairs

Written by: Matthew Fletcher

Primary Source : Turtle Talk, February 2, 2018

Michalyn Steele has posted “Congressional Power and Sovereignty in Indian Affairs” on SSRN. The paper is forthcoming in the Utah Law Review.

Here is the abstract:

The doctrine of inherent tribal sovereignty — that tribes retain aboriginal sovereign governing power over people and territory — is under perpetual assault. Despite two centuries of precedential foundation, the doctrine must be defended afresh with each attack. Opponents of the doctrine of tribal sovereignty express skepticism of the doctrine, suggesting that tribal sovereignty is a nullity because it is not unfettered. Some pay lip service to the doctrine while undermining tribes in their exercise of inherent sovereignty. Underlying many of these legal fights is confusion about both the nature of tribal sovereignty and the justifications for its continuing existence. Under current federal law, tribes are domestic, rather than international sovereigns. Tribes retain significant powers but are subject to the ultimate sovereignty of the United States. The sui generis status of Indian tribes in the American legal landscape generates important and difficult questions: which governing powers do tribes retain and where does the power to answer that question reside in the federal system? How are disputes about the scope of tribal authority to be resolved?

As the debate about what powers tribes may exercise (and over whom) continues into its third century, it is critical to reexamine the origins of the doctrine of inherent tribal sovereignty as a settled principle of federal law and to articulate the principles that ought to guide the development of that principle in the future. Setting the metes and bounds of the doctrine of tribal sovereignty in federal law and policy belongs to the political branches. This Article suggests legal principles that ought to guide the federal political branches in the exercise of the Indian Affairs power and the trust responsibility to address the scope of tribal inherent authority. First, this Article examines the legal roots and branches of the doctrine of inherent tribal sovereignty, demonstrating that the doctrine remains a vital principle of federal law. Second, this Article analyzes the nature of contemporary assaults on the doctrine of inherent tribal authority by all three branches of the federal government, states, and private actors. Third, this Article suggests principles that ought to guide Congress in exercising its Indian affairs power to clarify and affirm the bounds of tribal sovereignty in federal law and in carrying out the federal trust responsibility to tribes.

Highly recommended.

 

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Matthew Fletcher
Matthew L.M. Fletcher is Professor of Law at Michigan State University College of Law and Director of the Indigenous Law and Policy Center. He is the Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Pokagon Band of Potawatomi Indians, the Hoopa Valley Tribe, and the Nottawaseppi Huron Band of Potawatomi Indians. He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians, located in Peshawbestown, Michigan. In 2010, Professor Fletcher was elected to the American Law Institute.