Tribal Jurisdiction—A Historical Bargain

The existing rhetoric surrounding tribal civil jurisdiction over non-Indians often leaves out the historical foundations to that jurisdiction. This article compares the tribal economies of the 18th and 19th centuries with the current environment of gaming and economic development on tribal lands. Though non-Indians and nonmembers occasionally object to tribal jurisdiction, the long history of tribal governance and economic regulation demonstrates that nonmembers have received and continue to receive the benefit of a bargain that places them under considerable tribal regulation in exchange for access to tribal markets.Through a detailed survey of treaties, tribal statutes, and federal laws covering pre-1970’s tribal economic regulation, this article reveals that non-Indians have continually consented to tribal jurisdiction to access these tribal markets, making outliers of the non-Indians attempting to access tribal markets without consenting to tribal market regulations. Analyzing the laws surrounding the federal and tribal licensing of Indian traders; the Great Lakes fur trade; the marriage laws of the Five Civilized Tribes; and the procedures established for dealing with intruders on Indian lands in the 18th and 19th centuries demonstrates the vast historical underpinnings of the current efforts to retain civil jurisdiction over non-Indians

Rethinking Customary Law in Tribal Court Jurisprudence

Customary law still appears in many of the decisions of American state and federal courts. Modern courts rely less on customary law, part and parcel of the English common law adopted and adapted by the Founders of the United States, with statutory and administrative law dominating the field. In contrast, the importance of customary law in American Indian tribal courts cannot be understated. Indian tribes now take every measure conceivable to preserve Indigenous cultures and restore lost cultural knowledge and practices. Tribal court litigation, especially litigation involving tribal members and issues arising out of tribal law, often turns on the ancient customs and traditions of the people. But this development of applying customary law in tribal courts is new and undertheorized. For the first time, this Article attempts to provide an adequate theory as to how tribal judges should find and apply customary law on a normative level. This Article argues that tribal judges have a great deal to learn from H.L.A. Hart\u27s theory of primary and secondary rules

Factbound and Spitless: The Certiorari Process as Barrier to Justice for Indian Tribes

Article published in the Arizona Law Review

Professionalism in Tribal Jurisdictions

American Indian law is an important area of law. There are 12 federally recognized Indian tribes in the state of Michigan.1 Indian tribes throughout the United States do business in Michigan. Indian tribal governments and corporations employ hundreds of thousands of non-Indians and received billions in federal pandemic relief. Indian gaming generated nearly $40 billion in revenues nationally last year. Still, many lawyers ignore the field or claim ignorance about the basic precepts of federal Indian law. This article will canvass several themes of professionalism in tribal practice, drawing from this author’s tribal law experience over the last few decades. Many lawyers undervalue — and even disrespect — tribal governance. This lack of professionalism has significant costs to tribal governments, tribal business, and their business partners

The Tenth Justice Lost in Indian Country

Article published in the Federal Law

The Insidious Colonialism of the Conqueror: The Federal Government in Modern Tribal Affairs

This Article focuses on the actions of federal agencies that often do not appear on the radar screen, either because no existing cause of action allows the tribes to bring suit in federal court to enjoin the government’s actions, or because federal law limits tribal sovereignty. Part II of this Article discusses four case studies: the Grand Traverse Band of Ottawa and Chippewa Indians’ struggle to retain its right to determine its own membership requirements; the Saginaw Chippewa Indian Tribe of Michigan’s response through its tribal court of appeals to federal intervention in a tribal election dispute; the erosion of tribal rights to restore lost land and expand economic development opportunities; and the continuing impact of the Bureau’s sale of Indian land without Indian consent. Part III places these case studies in the broader context of how federal bureaucratic actions have rendered meaningless critical aspects of self-determination. This portion of the Article argues that meaningful self-determination requires bureaucratic acknowledgement of Indian tribes’ exclusive right to determine membership; that Indian tribes must be allowed to decide internal disputes without any interference from the federal government; that Indian tribes must be allowed to restore the land base to a critical mass for each tribe in order to allow for adequate economic development activities; that Indian tribes retain a right to a remedy for the past violations of law of which they are a victim; and that, finally, Indian tribes have a right to a competent trustee. The Article concludes in Part IV with a bleak vision, describing areas of critical tribal interest in which the federal bureaucracy is likely to maintain its paternalistic attitudes. Nevertheless, much of what ground has been lost can be regained with a simple change toward recognition of principles of self-determination on the part of the federal bureaucracy

Tribal Consent

Article published in the Stanford Journal of Civil Rights & Civil Liberties