US Supreme Court decision on tribal court jurisdiction over non-tribal member

On June 23, 2016, the US Supreme Court issued a ruling on the issue of whether tribal courts have jurisdiction over non-tribal members in civil tort claims.

The decision was split 4-4, finding in favour of the jurisdiction of the Mississippi Band of Choctaw Indians, in the decision Dollar General v Mississippi Band of Choctaw Indians.  In essence this deadlock upholds the decision of the lower court, which found in favour of tribal jurisdiction.

The judgment from the US Supreme Court itself does not shed much light on the reasoning behind the decisions on either side, simply stating that “The judgment is affirmed by an equally divided Court.” 

As one opinion analysis notes, the case centered on the issue  of “exactly constitutes enough consent”  from non-members for  tribal jurisdiction to apply.

This decision is yet another part of the complex and at times unclear federal law on American Indians. One commentator notes that: 

 “Because of the uniqueness of Indian law and as a result of its patchwork nature, Justices have been known in private conversation to express frustration with the vagaries of Indian law cases. More than two decades ago, a Justice who was speaking in private to a group of scholars observed that when it came to Indian law, “we just make it up as we go.””

Useful commentary on the decision can also be found here. 

Will this decision provide clarity on the contentious issue of tribal jurisdiction, or is this to be regarded as an instance of the Court side-stepping a difficult question? 

"The Exercise of External Self-Determination by Indigenous Groups: The Republic of Lakotah and the Inherent Sovereignty of American Indian Peoples"

http://heinonline.org/HOL/Page?handle=hein.journals/sljicla1&div=7&g_sent=1&collection=journals

A 2015 article on the Republic of Lakotah
"The Exercise of External Self-Determination by Indigenous Groups: The Republic of Lakotah and the Inherent Sovereignty of American Indian Peoples" Sarah Sargent and Graham Melling

Binding Regulations Issued for the Indian Child Welfare Act (ICWA)

It has been a long time coming—nearly forty years after the enactment of the Indian Child Welfare Act (ICWA)—but at long last there will be binding regulations that must be followed.  Signed on June 6, with entry into effect forecast for December 2016, this is a big step forward to ensure the proper application and adherence to the Indian Child Welfare Act.  This link is not to the official rule ( which will be published in the Federal Register) but rather is a copy of the document which was signed and “submitted …for publication in the Federal Register.” 

It did not take long after ICWA’s enactment for state courts to begin to find ways to evade its application—most notably with the so called “ existing Indian family exception”—which enabled a state court judge to apply his or her own standard of how connected a child and family must be to a tribe and to American Indian culture to apply the law. This is despite the fact that the plain language of ICWA entertains nothing of the sort as a threshold requirement for the application of the Act.

is hoped that these new binding regulations will strengthen the application of the Act, and put to rest state court efforts to devise doctrines to evade ICWA’s requirements.

A variety of commentary on the new binding regulations can be found here. 

Delay to the Dakota Access Pipeline: Route May Cross an Ancient American Indian Burial Ground

Despite opposition from members of the Standing Rock Sioux Tribe,   plans to construct the Dakota Access pipeline across four states continue, with construction under way in North and South Dakota and Illinois.


 Construction has been delayed in Iowa,  because of “the possibility of an American Indian burial site” on the planned pipeline construction route. 

A construction permit has been revoked by the US Fish and Wildlife Service, who owns the property in question, pending further investigation into the claims of the burial site. 

Sophisticated Marketing, Oil Companies and Indigenous Rights in Canada

With the Canadian government’s announcement that it intends to fully implement the provisions of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), alongside a 2014 Canadian Supreme Court decision that interprets the principle of  free prior and informed consent (FPIC) as requiring the permission of indigenous groups in most instances, and not simply an exercise in consultation, amidstproposals to extend pipelines,  there is a potent stew of issues that will play out in real life situations. What all of this means for indigenous rights is yet to be seen.

Yet, alongside these developments that are supportive of indigenous rights, oil companies have engaged in increasingly complex marketing and advertising approaches, according to research that was presented by AdamHarmes at the 2016 Congress of Humanities and Social Sciences. For instance: “Oil sector marketing initiatives found employees are more trustedspokespeople than CEOs. Their testimonials spoken before a backdrop of lush,forested areas are effective sales tools.”

As the push continues for permission to expand for instance, the Trans Mountain pipeline, the intersection of indigenous rights developments with oil company campaigns for support will play out in ways that test the strength of what the Canadian government intends in its announcement to fully implement the UNDRIP and the position the Canadian Supreme Court has taken on the meaning of FPIC.

Further information on Professor Harmes' research can be found at this link. 

FPIC, Canada, and yet another pipeline

The debate on the meaning of free, prior and informed consent  (FPIC) within the United Nations Declaration on Indigenous Peoples has centered around whether this gave indigenous groups the right to veto proposed projects, or whether the obligation to obtain consent simply was a mask for a consultation process—where the final views of the indigenous group did not carry any authority for a rejection of a project. 

With the recent announcement in May of the Canadian government’s intention to fully implement the provisions of the UNDRIP, the question of what position it might take on the contested meaning of FPIC becomes more than mere rhetorical speculation.

This becomes a key question as to whether a proposed pipeline project will proceed. An expansion of the Trans Mountain pipeline is opposed by the “The Stó:lō collective of First Nations in British Columbia”. The SupremeCourt of Canada, in 2014, ruled that indeed consent meant consent and not a consultation process, absent a showing by provincial or federal governments that “there is a pressing public need” for economic activity on some Aboriginal lands.  More information on that court decision can be located here. 

There is a view then, that FPIC in Canada will be seen as requiring consent, and not simply indicate that a consultation process must be undertaken. How all of this plays out, with respect to the proposed Trans Mountain pipeline, and other projects, remains to be seen.

Canada Announces Intent to Fully Implement UNDRIP

In May, Canada took further steps towards more fully supporting the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). It had been one of the four states that voted in opposition of General Assembly approval in 2007. But with an announcement by Canada’s Indigenous Affairs Minister on May 10,2016, Canada now has declared its intention to fully implement the Declaration. 

The announcement was made during a session of the UN  Permanent Forum on Indigenous Issues.

Canada reversed its initial opposition to the Declaration in 2010, when it announced its endorsement of the instrument. 

The announcement in May of an intention to fully implement is seen by some as a milestonefor indigenous rights in Canada. 

But there are mixed views on Canada’s announcement. Tori Cress, who attended the UNPFII, does not see the intentions of implementing the UNDRIP in accordance with the Canadian Constitution as a step forward for indigenous rights. 

Cress also criticizes the UNPFII as a forum dominated by state participants, leaving the indigenous participants in a “subordinate position.”