Martin's "Cherokee Supreme Court"

 J. Matthew Martin, an Administrative Law Judge with the Social Security Administration who for over a decade served as Associate Judge of the Cherokee Court, the Tribal Court for the Eastern Band of Cherokee Indians, has published The Cherokee Supreme Court with Carolina Academic Press.

The first legal history of the first tribal court upends long-held misconceptions about the origins of Westernized tribal jurisprudence. This book demonstrates how the Cherokee people—prior to their removal on the Trail of Tears—used their judicial system as an external exemplar of American legal values, while simultaneously deploying it as a bulwark for tribal culture and tradition in the face of massive societal pressure and change.

Extensive case studies document the Cherokee Nation's exercise of both criminal and civil jurisdiction over American citizens, the roles of women and language in the Supreme Court, and how the courts were used to regulate the slave trade among the Cherokees. Although long-known for its historical value, the legal significance of the Cherokee Supreme Court has not been explored until now.

–Dan Ernst

Green on the Three Commerce Powers

Christopher R. Green, University of Mississippi School of Law, has posted Tribes, Nations, States: Our Three Commerce Powers:

This Article argues that one aspect of the power to regulate “Commerce with foreign Nations … and with the Indian Tribes” is broader than the power over “Commerce … among the several States.” If “Tribes” and “Nations” consist of people, but “States” of territory, then “Commerce … among the several States” must cross state lines, even though small, local transactions between Americans and non-citizens are commerce “with foreign Nations” or “with the Indian tribes.”

Why think that? There is considerable evidence that the tribal commerce power replaces “trade … with the Indians” in the Articles of Confederation, but early direct definitions of the other two commerce powers are surprisingly rare. Antifederalists complained at length that the power to tax for the general welfare would make the federal government all-powerful, but not so about the commerce power which largely did the job after 1937. In January 1788, Federal Farmer 11 described the foreign commerce power as “trade and commerce between our citizens and foreigners.” Elbridge Gerry restated it in 1790 as “trade with foreigners.” Jefferson and Randolph’s 1791 bank objections defined foreign and tribal commerce as commerce with non-citizens. Martens’s 1788 international-law treatise explained “commerce … with foreign nations” as including “power over the foreigners living in its territories.” The 20-year slave-trade protection presupposes broad foreign commerce power, but narrow interstate commerce power: Congress may control “migration,” but not domestic slavery or other labor conditions. The earliest attacks on federal power over non-citizens’ commerce discussing the 1794 Jay Treaty and 1798 Alien Act were internally inconsistent. Despite lots of its own inconsistency, the Supreme Court adopted this view in 1866 in United States v. Holliday.

Why care? Broad foreign and tribal commerce powers undermine the late-nineteenth-century motivation for unenumerated “plenary” powers over foreign affairs or tribes; a limited interstate commerce power allows “powers not delegated to the United States by the Constitution” to refer to something. The tribal commerce power likewise supports the Indian Child Welfare Act’s regulation of the transfers of tribal-member custody. Congress’s 1870 protection of non-citizens’ occupational and contracting rights and 1986 prohibition on employment discrimination rest on its foreign commerce power, not the Fourteenth Amendment; Congress may regulate non-citizens’ labor conditions, but not labor conditions generally. Antidiscrimination law can then refocus on equal citizenship — the Privileges or Immunities Clause for states and fiduciary principles for the federal government — instead of historically-less-plausible rights for all humanity. Cases like Graham v. Richardson would turn on pre-emption, and three gaps in antidiscrimination law — federal citizenship classifications in Mathews v. Diaz, governmental functions in Ambach v. Norwick, and tribal classifications in Morton v. Mancari — receive possible justification.

 -Dan Ernst

Berger on "McGirt v. Oklahoma and the Past, Present, and Future of Reservation Boundaries"

Bethany Berger (University of Connecticut School of Law) has posted "McGirt v. Oklahoma and the Past, Present, and Future of Reservation Boundaries," to be published in the University of Pennsylvania Law Review Online. Here's the abstract:

“Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.” So reads McGirt v. Oklahoma, the most important reservation boundary case in the history of the Supreme Court. But the reality is that until McGirt, courts often rewarded unlawful acts with reservation diminishment. This Article first places McGirt in the context of the Muscogee (Creek) Nation’s century long fight to restore sovereign rights illegally denied after allotment, and the even longer fight by the Muscogee Nation and others to survive a trail of broken treaty promises. It then corrects the false assumptions about the past and present of reservation boundaries that led the Court to turn lawbreaking into law.

As to the past, I show that the allotment-era Congress knew that reservations did not depend on land tenure, and that its statutes distinguished between allotment acts that diminished reservations and those that did not. States, however, regularly broke the law, asserting jurisdiction in violation of federal Indian law rules. Before McGirt, however, the Court falsely assumed that “[t]he notion that reservation status of Indian lands might not be coextensive with tribal ownership was unfamiliar at the turn of the century,” and so justified relying on state violations of tribal sovereignty as “evidence” of congressional intent.

As to the present, I show that reservation status is not disruptive for non-Indian communities, and often benefits tribal and non-tribal citizens alike. In high-profile cases in Tacoma, Washington and Pender, Oklahoma, life in those communities began to improve at the same time reservation boundaries were affirmed. Throughout the country tribal governments contribute to the economies and social welfare of their surrounding communities. The Muscogee Nation, whose sophisticated law enforcement, health care, governance, and economic development arms already partner with non-tribal governments throughout its territory, exemplifies the benefits that strengthening tribal self-governance can provide.

The full article is available here.

-- Karen Tani