53,290 research outputs found

    The Resurgence of Tribal Courts: A Tribal Judge's Perspective

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    A full transcript is included with this record, and includes case citations. Transcript prepared by Melissa S. Green, Justice Center, University of Alaska Anchorage.Judge David Voluck is an attorney in Sitka, Alaska, and in 2008 was appointed chief judge of the Sitka Tribal Court. He also serves as magistrate judge for the Central Council of the Tlingit and Haida Indian Tribes and is presiding judge pro tem for the Aleut Community of St. Paul Island tribal government. He is introduced here by Dr. Ryan Fortson of the UAA Justice Center. In this podcast Judge Voluck presents a context for tribal courts and Native law, outlines the development of Indian law in the United States, and discusses tribal sovereignty and the role of tribal courts in Alaska. This presentation was recorded on Monday, November 18th, 2013 at the University of Alaska Anchorage/Alaska Pacific University Consortium Library on the UAA campus.Welcome and Introduction / MAIN PRESENTATION / Why is any of this important? / Divine Rights / Foundations of United States Indian Law / Fundamentals of the Marshall Trilogy / Aboriginal rights in Alaska / Post-ANCSA Tribal Sovereignty in Alaska / Post-ANCSA ‘Indian Country’ in Alaska / State of Alaska’s Historical Hostility Toward Tribal Sovereignty / Renaissance for Tribal Sovereignty in Alaska / The Tide Continues / Turn About Continues / Except for In Alaska / QUESTIONS & ANSWERS / Contrasts between tribal courts and Alaska state courts / ANCSA corporations as Native entities / Tribal land acknowledgement / “Integration” under ANCSA; land into trust / “Why haven’t I heard of tribal court in Alaska before?” / Do tribal courts write opinions? / The Major Crimes Act / Circle justice, restorative justice / Intergenerational trauma / Tribal jurisdiction and overlapping jurisdictions / Lawyers in tribal court

    The Virtues and Vices of Sovereignty

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    American Indian tribal sovereignty is viewed very differently in the United States Supreme Court than it is in American Indian tribal nations. The United States Supreme Court, the progenitor of the legal doctrine of tribal sovereignty, appears skeptical of the doctrine\u27s continuing viability. The Court is therefore veering away from any strong notion of retained inherent tribal sovereignty. American Indian tribes, the sources and perpetuators of de facto tribal sovereignty, are more committed than ever to enacting their sovereignty on the ground, as well as promoting and protecting its legal status in the courts and in Congress. There is an ironic feedback loop created by these different conceptions of tribal sovereignty, in that the more tribes exercise their sovereignty in practice, the more frequently conflicts about tribal powers end up being litigated in federal courts, where the skeptical view about the vitality of sovereignty tends to prevail. The Supreme Court is skeptical of tribal sovereignty for two predominant reasons. First, there is a formalist objection to the paradoxical nature of the legal doctrine. Second, the Court exhibits an inchoate sense that tribal sovereignty is little other than the contradictory doctrine that the Court itself has generated. The tempered sovereignty that tribes possess is therefore in need of a defense. The defense explored in this short essay has a positive and a negative aspect. The positive part of the defense consists first of describing the historical and philosophical pedigree for tempered sovereignty, and then putting forth an argument for tempered sovereignty\u27s virtues. Those virtues include preserving the prerogative of a people to choose a form of government that protects distinct yet evolving cultures. The negative part will wade into discussions of the powers of another sovereign: the United States. As recent legal and historical events reveal, sovereignty in its absolutist formulation has considerable potential for vice. Moreover, the pedigree for absolute sovereignty is no more sanctified than that for divided sovereignty. Given the virtues of tempered sovereignty and the vices of absolute sovereignty, the Supreme Court might want to reconsider its current path

    Embracing Tribal Sovereignty to Eliminate Criminal Jurisdiction Chaos

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    This Note argues that the current federal laws regarding tribal criminal jurisdiction are contrary to existing policies that recognize inherent tribal sovereignty, and that to fully restore tribal sovereignty and reduce reservation crime rates, Congress should revise the MCA and the TLOA to comprehensively address the legal barriers that adversely affect tribes\u27 ability to prosecute crimes committed within their geographic borders. Part I outlines the historical progression of laws addressing criminal jurisdiction in Indian Country and identifies the problems with the law\u27s disregard and displacement of tribal sovereignty. Part II examines the current state of criminal jurisdiction on reservations-focusing on the lack of tribal input, legal ambiguities, and the under-inclusive nature of the existing laws-and argues that recent shifts in federal policy support broader recognition of inherent tribal sovereignty. Part III explains why the current TLOA, when examined in the context of historical acts of Congress and court decisions, does not go far enough to fix either the barriers imposed on tribal sovereignty or the problems of reservation crime. Part IV proposes revisions to the MCA and the TLOA to promote tribal sovereignty and simplify criminal jurisdiction in Indian Country

    Embracing Tribal Sovereignty to Eliminate Criminal Jurisdiction Chaos

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    This Note argues that the current federal laws regarding tribal criminal jurisdiction are contrary to existing policies that recognize inherent tribal sovereignty, and that to fully restore tribal sovereignty and reduce reservation crime rates, Congress should revise the MCA and the TLOA to comprehensively address the legal barriers that adversely affect tribes\u27 ability to prosecute crimes committed within their geographic borders. Part I outlines the historical progression of laws addressing criminal jurisdiction in Indian Country and identifies the problems with the law\u27s disregard and displacement of tribal sovereignty. Part II examines the current state of criminal jurisdiction on reservations-focusing on the lack of tribal input, legal ambiguities, and the under-inclusive nature of the existing laws-and argues that recent shifts in federal policy support broader recognition of inherent tribal sovereignty. Part III explains why the current TLOA, when examined in the context of historical acts of Congress and court decisions, does not go far enough to fix either the barriers imposed on tribal sovereignty or the problems of reservation crime. Part IV proposes revisions to the MCA and the TLOA to promote tribal sovereignty and simplify criminal jurisdiction in Indian Country

    Congressional Power and Sovereignty in Indian Affairs

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    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

    Economic Evidence on the Effects of the Indian Gaming Regulatory Act on Indians and Non-Indians

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    When Congress passed the Indian Gaming Regulatory Act (IGRA) in 1988, some tribal leaders perceived the state compacting provision required for casino-style gaming on tribal lands as an erosion of tribal sovereignty that could undermine their early economic development successes and disrupt a precariously successful federal-tribal relationship with regard to tribal self-determination. In hindsight, however, the substantial growth and myriad positive impacts of the first twenty years of tribal gaming under IGRA reveal the ways that the federal regulatory framework laid out in the law resolved numerous legal dilemmas that had plagued tribal gaming expansion. It is now clear that the predictability provided by successful tribal- state compact negotiations allowed the necessary capital investments to produce a robust tribal government gaming industry across much of Indian Country. Therefore, an analysis of tribal government gaming’s impacts on tribal communities and neighboring localities is best framed in the context of the federal law that continues to shape the industry today

    Redefining Tribal Sovereignty for the Era of Fundamental Rights

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    This Article explains a longstanding problem in federal Indian law. For two centuries, the U.S. Supreme Court has repeatedly acknowledged the retained, inherent sovereignty of American Indian tribes. But more recently, the Court has developed the implicit-divestiture theory to deny tribal governments criminal and civil jurisdiction over nonmembers, even with respect to activities on tribal lands. Legal scholars have puzzled over this move from a territorial-based definition of tribal sovereignty to a membership-based definition; they have variously explained it as the Court’s abandonment of the foundational principles of Indian law, the product of the Court’s indifference or even racist hostility to Indians, or a simple lack of doctrinal coherence in the Court’s decisions. This Article provides a different explanation. The implicit-divestiture cases represent the Court’s effort to address a trilemma among three incompatible objectives: preservation of the traditional, territorial-based definition of tribal sovereignty, preservation of tribal governments’ placement outside the federalist structure of the constitutional order, and preservation of fundamental rights. The Court has chosen to resolve the trilemma by redefining tribal sovereignty to deny tribal jurisdiction over nonmembers. Whether right or wrong, the implicit-divestiture theory is the Court’s good-faith attempt to preserve as much tribal sovereignty as possible without infringing on fundamental rights or forcing tribal governments into the federalist structure

    Connecting the Dots Between the Constitution, the Marshall Trilogy, and United States v. Lara: Notes Toward a Blueprint for the Next Legislative Restoration of Tribal Sovereignty

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    This law review Article examines: (1) the underpinnings of tribal sovereignty within the American system; (2) the need for restoration based on the Court\u27s drastic incursions on tribal sovereignty over the past four decades and the grave circumstances, particularly tribal governments\u27 inability to protect tribal interests on the reservation and unchecked violence in Indian Country, that result from the divestment of tribal sovereignty; (3) the concept of restoration as illuminated by United States v. Lara, and finally (4) some possible approaches to partial restoration. The Article first evaluates the constitutional provisions relating to Indians and the earliest federal Indian law decisions written by Chief Justice Marshall on the premise that these two sources shed light on the upper limits of a potential legislative restoration of tribal sovereignty. Next, the Article examines the judicial trend of divestment of tribal sovereignty, focusing particularly on the latest decisions that evidence this trend. The Article further examines the negative effects of this divestment in Indian Country, from impeding tribes\u27 ability to provide governmental services and to protect their unique institutions, to problems of widespread on-reservation violence, particularly against Indian women. 7he Article concludes that the judicial trend of divesting tribal sovereignty combined with these dire effects clearly demonstrate a need for restoration. Finally, the Article examines the Lara holding and its implications for the types of restoration that will be upheld by Court, concluding with an examination of options for potential legislative restorations
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