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.
This Article brings to the fore the exclusion of tribal governments and their laws from our mainstream conception of “American law” and identifies this exclusion as both an inconsistent omission and a missed opportunity.
Unlike other children, Native American children can be tried and sentenced in tribal, state or federal justice systems. Once they make contact with the justice system, Native youth face unique complications that many don’t understand[.]
McGirt v. Oklahoma: Understanding What the Supreme Court’s Native American Treaty Rights Decision Is and Is Not
Confusion permeates the public arena as to what the U.S. Supreme Court recently did – and didn’t do – by ruling in favor of the Muscogee (Creek) Nation, a federally recognized Native American tribe, and against the state in McGirt v. Oklahoma.
On July 9, 2020 the Supreme Court of the United States held that land in northeastern Oklahoma reserved for the Creek Nation since the 19th century remains a reservation for the purpose of a federal statute that gives the federal government exclusive jurisdiction to try certain major crimes committed by “[a]ny Indian” in “the Indian country.”
This short essay argues for tribal regulatory powers over nonmembers in Indian country during a pandemic. This should be an easy argument, but federal Indian law makes it more complicated than it should be.