The Law of American Indians Posts
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.
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.
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.
Reporter Kaighn Smith Jr. discusses the complex topic of Tribal Entities and Sovereign Immunity in the video below.
Reporters Matthew Fletcher and Wenona Singel discuss Tribal Sovereignty.
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.
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.
This Article examines what has been the role of the Supreme Court in integrating Indian nations as the third Sovereign within our federalist system.
The U.S Supreme Court denied a petition to hear a case involving whether, when, and to what extent the federal reserved right doctrine recognized in Winters v. United States pre-empts state-law regulation of groundwater.
Can American Indian nations sue and be sued in federal and state courts? Specific issues are whether tribes have corporate capacity to sue, whether a Native group has recognized status as a tribe, and whether and to what extent tribes and their officers have governmental immunity from suit.