The Law of American Indians Posts

Tribal Powers over Nonmembers – Part 1

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In the American Indian Law project draft that will be presented at the 2018 Annual Meeting, two Sections deal with tribal powers over nonmembers – § 34, Civil Regulatory and Adjudicatory Authority over Nonmembers and § 35, Tribal-Court Exhaustion Rule. This is the first of two posts that present the Black Letter and Comments from the draft.

Senate bills would expand tribal jurisdiction

Language in a bill currently going through the Senate states, “Congress finds that American Indian children and Alaska Native children experience PTSD at a rate of 22 percent, which is the same rate at which Afghanistan and Iraq war veterans experience PTSD.” Several bills have been introduced during this Congress to help combat that staggering rate and, at the same time, increase tribal jurisdiction in several other areas.

When Patents are Sovereigns: The Competitive Harms of Leasing Tribal Immunity

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Under the Hatch-Waxman and America Invents Acts, Congress has established a system for judicial and administrative review of prescription-drug patents that balances exclusive rights for patent holders and the entry of generic competitors. Threatening this balance, the pharmaceutical company Allergan recently transferred prescription drug patents to the Saint Regis Mohawk Tribe, a federally recognized Indian tribe. Because tribal sovereign immunity limits the jurisdiction of courts and other adjudicatory bodies to hear cases involving tribal interests, such actions by brand-name pharmaceutical companies may prevent generic companies and other parties from invalidating patents, likely leading to higher drug prices.

Congressional Power and Sovereignty in Indian Affairs

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.

Securing Equal Access to the Ballot for Native Americans

Native Americans, like other minority groups, face racially motivated disenfranchisement efforts. Watershed victories for equal access to the ballot – including the passage of the Fifteenth Amendment and the Nineteenth Amendment – did not affect Native Americans because they were not considered U.S. citizens until the enactment of the Indian Citizenship Act in 1924. While the Act nominally enfranchised Native Americans, disenfranchisement tactics remained pervasive at the state level.