Towards Tribal Sovereignty and Judicial Efficiency: Ordering the Defenses of Tribal Sovereign Immunity and Exhaustion of Tribal Remedies

In 1985, the Narragansett Indian Tribe ( Tribe ) created the Narragansett Indian Wetuornuck Housing Authority ( Authority ). The Authority, which acts on the Tribe\u27s behalf in its housing development and operations, entered into a contract with the Ninigret Development Corporation for the construction of a low-income housing development. After construction began, disputes developed over how to proceed with the construction. When conciliation efforts failed, the Authority cancelled the contract. The Narragansett Tribal Council, the governing body of the Tribe, followed the forum selection clause in the contract and notified the disputants that it would hold a hearing to resolve the dispute. Ninigret refused to appear at the hearing, and the Tribal Council found that Ninigret had failed to fulfill its contractual obligations and had incurred liability for the costs to fix the problems encountered in the construction of the housing development. Ninigret ignored the Tribal Council\u27s decision and the available appeals and sued the Authority in federal court for breach of contract. The Authority moved to dismiss the claims for want of jurisdiction, claiming that as a tribal agency it was entitled to tribal sovereign immunity, and that the Tribal Council should have jurisdiction in the case pursuant to the exhaustion of tribal remedies doctrine ( tribal exhaustion ). The district court interpreted the forum selection clause, ruled the clause enforceable, and dismissed Ninigret\u27s claims because the appellant had failed to follow the provisions of the clause. Ninigret appealed. The First Circuit, in Ninigret Development Corp. v. Narragansett Indian Wetuomuck Housing Authority, determined that the district court properly exercised its jurisdiction by hearing the tribe\u27s sovereign immunity defense and interpreting the forum selection clause before invoking tribal exhaustion

Is Hindsight 20-20? Reconsidering the Importance of Pre-Constitutional Documents

Many constitutional orders, including the United States, have yet to determine the legal and political status of pre-constitutional documents written prior to the enactment of a final constitution. This article argues that pre constitutional documents should be critically analyzed by their respective constitutional communities. It maintains that pre-constitutional documents play a key role in constitutional orders by identifying conflicts that remain over time and contends that critical analysis of these documents facilitates deeper understandings of constitutional politics. It demonstrates how pre constitutional documents can be used as diagnostic tools for identifying and better understanding persistent constitutional tensions through a case study of a Peruvian pre-constitutional document. The case study indicates that even underappreciated pre-constitutional documents can broaden understandings of contemporary constitutional politics. The article concludes that pre constitutional documents play a role in current constitutionalism and that legal communities should consider them more seriously

Lobbying as a Strategy for Tribal Resilience

Indian tribes have endured as separate governments despite the taking of their land, the forced relocation of their people, and the abrogation of their treaty rights. Many threats to tribal existence have stemmed from federal policies aimed at assimilating Indians into mainstream American society. In crafting these policies, members of Congress often relied on the input of non-Indians, including the Bureau of Indian Affairs. As a result, American Indians were largely left out of the federal policy–making process. This started to change in the 1970s when Congress adopted the Tribal Self-Determination Policy, which encouraged tribal participation in the creation of federal Indian policy. Tribes have responded to this opening of the political process by increasingly lobbying Congress. This Article explores how tribes have used legislative strategies to influence federal Indian policy. It demonstrates how tribes have used lobbying as a way to build resilience over time by influencing the development of federal Indian policies that protect tribal sovereignty. This Article emphasizes the role of American Indian voices in federal policy–making and shows how tribes have used legislative advocacy to initiate new policies, to reverse court decisions, and to oversee the implementation of existing policies. In conclusion, this Article considers some of the implications of this research for federal Indian law and interest group and advocacy studies more generally

Priceless Property

In 2011, the poorest American Indians in the United States refused to accept over one billion dollars from the United States government. They reiterated their long-held belief that money--even $1.3 billion--could not compensate them for the taking of their beloved Black Hills. A closer look at the formation of the Sioux claim to the Black Hills helps us to understand why the Sioux Nation has repeatedly rejected compensation for land taken by the United States over 100 years ago. This article seeks to understand why the Sioux view the Black Hills as priceless property by studying the formation of the Black Hills claim. It constructs a new, richer approach to understanding dispute formation by combining narrative analysis with the sociolegal framework for explaining dispute formation. The article argues that narratives enrich the naming, claiming, and blaming stages of dispute creation. It illustrates the usefulness of this new approach through a case study of the Black Hills claim. It uses the autobiographical work of an ordinary Sioux woman to provide a narrative lens to the creation of the Sioux claim to the Black Hills. American Indian Stories by Zitkala-Sa presents a narrative of Sioux life around the time of the claim\u27s emergence. By contextualizing and humanizing the claim, my analysis provides insights into why the Sioux claim to the Black Hills emerged into a legal dispute and helps to explain why the Black Hills remain priceless property to the Sioux Nation today. The article concludes with a suggestion for successful resolution of the Black Hills claim based on acceptance of the Black Hills as priceless property to the Sioux Nation

Bringing Congress and Indians Back into Federal Indian Law: The Restatement of the Law of American Indians

Congress and Native Nations have renegotiated the federal-tribal relationship in the past fifty years. The courts, however, have failed to keep up with Congress and recognize this modern federal-tribal relationship. As a result, scholars, judges, and practitioners often characterize federal Indian law as incoherent and inconsistent. This Article argues that the Restatement of the Law of American Indians retells federal Indian law to close the gap between statutory and decisional law. It realigns federal Indian law with the modern federal-tribal relationship negotiated between Congress and tribal governments. Consistent with almost a half-century of congressional law and policy, the Restatement clarifies the foundational principles of federal Indian law and provides federal and state courts with guidance on how to interpret statutes related to Native governments and peoples. It provides courts with a vision of federal Indian law that is more coherent, easier to apply, and more reflective of the state of affairs in Indian Country than the decisional law adopted by the Supreme Court in the past fifty years

Congress and Indians

Contrary to popular narratives about courts protecting certain minority rights from majoritarian influences, Indian nations lose in the United States Supreme Court over 75 percent of the time. As a result, scholars, tribal leaders, and advocates have suggested that Congress, as opposed to the courts, may be more responsive to Indian interests and have turned to legislative strategies for pursuing and protecting tribal interests. Yet very little is known about the kinds of legislation Congress enacts relating to American Indians. This Article charts new territory in this understudied area and responds to recent calls for more empirical legal studies in the field of federal Indian law by enhancing understandings of the amount and kinds of Indian-related legislation enacted by Congress. Based on an analysis of 7,799 Indian-related bills, the Article expounds a basic typology of the kinds of Indian-related legislation introduced and enacted by Congress from 1975 to 2013. The Article reports a higher enactment rate for Indian-related legislation as compared to the enactment rate of all bills introduced in Congress. This finding problematizes traditional narratives about the success of minority groups in the political process and has serious implications for how scholars and advocates understand congressional policymaking. Further, the Article shows that much of this legislation does not affect Indians alone. Rather, Congress generates a substantial amount of legislation for the general welfare of its citizens, including Indians and Indian nations. It suggests that federal Indian law scholarship, which has focused on legislation specific to Indian nations, has overlooked an important part of the development of federal Indian law and policy. Finally, the Article considers some possible explanations for the higher enactment rate of Indian-related legislation and the implications of this study for congressional policymaking, especially federal Indian law and policy. It confirms the need for further investigation into the different kinds of Indianrelated legislation and the complex relationships between Congress and Indians

Premature Predictions of Multiculturalism?

The late twentieth century ushered in a renewed interest in constitutional democracy as Latin American states revised earlier constitutions and post-Communist countries in Eastern Europe wrote new constitutions to reflect their democratic aspirations. Processes of constitution-making continued throughout the 1990s with new constitutions emerging in states throughout Africa, Latin America, and Europe. The rejuvenation of constitution-making also renewed scholarly interest in comparative constitutionalism. Scholars investigating constitution-making processes in Eastern Europe and Africa soon developed theories on how these processes and the contents of national constitutions changed in the late twentieth century. Donna Lee Van Cott contributes to the new literature on comparative constitutionalism by focusing on the constitutional movement that swept through Latin America in the 1990s. Specifically, Van Cott suggests that Latin American countries contributed to the new era of constitutionalism by developing multicultural constitutions (p. 3). The basic aim of her project is to create a model to explain when states decide to create multicultural constitutions. She demonstrates the validity of her model by applying it to the most recent Colombian and Bolivian constitutions. She argues that the convergence of crises of representation, participation, and legitimation. prompts political elites to perceive constitutional revision as essential (p. 8). Then, political elites engage in constitutional transformations that split from the liberal tradition and produce multicultural constitutions