The subject matter of this Restatement predates the birth of our nation. Some of the most important early decisions of the Supreme Court of the United States, including ones authored by Chief Justice John Marshall, deal with the Law of American Indians. And tribes, along with the federal government and the states, are one of the three categories of sovereigns in the United States. (Excerpted from the Forward of Tentative Draft No. 1 by ALI Director Richard L. Revesz)
This field is so informed by history, probably more than any other in some ways. … Certainly in the field of Indian affairs, a lot of damage has been done in the past, and there are a lot of challenges for the future just to get things right from the perspective of those of us who believe that tribes should have a voice in this society, and that there are good rules to help bolster that voice. (Excerpted from an interview with Associate Reporter Kaighn Smith)
A significant portion of Chapter 1 (Federal-Tribal Relationships) has been approved by ALI’s membership. This chapter contains General Terms, Federal–Tribal Relationship, American Indian Treaty Law, Federal Legislation, and Breach of Trust Claims.
Additional planned chapters:
- Chapter 2 will focus on the powers of Indian tribes, including the power to determine what form of government tribes will develop, to determine the criteria for membership in the tribe, and also to legislate with respect to a wide variety of matters like taxation.
- Chapter 3 will address tribal-state relations.
- Chapter 4 is going to address two aspects of economic development in Indian country; tribes as economic actors, and tribes as economic regulators.
- Chapter 5 will address an issue that is at the forefront in Indian law policy right now – Indian country criminal jurisdiction.
Teaching Indian Law in the 21st Century
In the 21st century, many law schools offer Indian law but generally are still far behind the curve. Worse, when it is offered, the Indian law canon tends to be taught in ways that ignore contemporary tribal agency by emphasizing historical events over modern issues. This article gives examples of tribal court cases and tribal statutes law teachers can use to incorporate Indian law into virtually any common law course.
Preemption, Commandeering, and the Indian Child Welfare Act
The Supreme Court has agreed to review constitutional challenges to the Indian Child Welfare Act brought by the State of Texas and three non-Indian foster families in the October 2022 Term. We argue that the anticommandeering challenges against ICWA are unfounded because all provisions of ICWA provides a set of legal standards to be applied in state which validly and expressly preempt state law without unlawfully commandeering the States’ executive or legislative branches.
Using Peacemaking Circles to Indigenize Tribal Child Welfare
This Article outlines the ways in which the modern tribal child welfare system has been structured to compartmentalize families and perpetuate historical federal policies of Indian family separation. This Article then suggests that circle processes are a framework for re-Indigenizing the tribal child welfare system to not just improve outcomes, but to also honor the interconnected, responsibility oriented worldview of Indigenous communities.
Testimony before the Commission on Native Children
This letter and powerpoint were prepared at the request of the Alyce Spotted Bear and Walter Soboleff Commission on Native Children in advance of a hearing on jurisdictional issues related to the Indian Child Welfare Act.
Off-Reservation Treaty Hunting Rights, the Restatement, and the Stevens Treaties
With particular attention to Sections 83 and 6 of the Restatement of the Law of American Indians, this essay explores the challenges and potential solutions for dealing with off-reservation treaty hunting and gathering.