Congress plenary power over tribes

Although Native Americans have been held to have both inherent rights and rights guaranteed, either explicitly or implicitly, by treaties with the federal government, the government retains the ultimate power and authority to either abrogate or protect Native American rights. This power stems from several legal sources. One is the power that the Constitution gives to Congress to make regulations governing the territory belonging to the United States (Art. IV, Sec. 3, Cl. 2), and another is the president's constitutional power to make treaties (Art. II, Sec. 2, Cl. 2). A more commonly cited source of federal power over Native American affairs is the COMMERCE CLAUSE of the U.S. Constitution, which provides that "Congress shall have the Power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" (Art. I, Sec. 8, Cl. 3). This clause has resulted in what is known as Congress's "plenary power" over Indian affairs, which means that Congress has the ultimate right to pass legislation governing Native Americans, even when that legislation conflicts with or abrogates Indian treaties. The most well-known case supporting this congressional right is Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S. Ct. 216, 47 L. Ed. 299 (1903), in which Congress broke a treaty provision that had guaranteed that no more cessions of land would be made without the consent of three-fourths of the adult males from the Kiowa and Comanche tribes. In justifying this abrogation, Justice EDWARD D. WHITE declared that when "treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be availed of from considerations of governmental policy."

Another source for the federal government's power over Native American affairs is what is called the "trust relationship" between the government and Native American tribes. This "trust relationship" or "trust responsibility" refers to the federal government's consistent promise, in the treaties that it signed, to protect the safety and well-being of the tribal members in return for their willingness to give up their lands. This notion of a trust relationship between Native Americans and the federal government was developed by U.S. Supreme Court Justice John Marshall in the opinions that he wrote for the three cases on tribal sovereignty described above, which became known as the Marshall Trilogy. In the second of these cases, Cherokee Nation v. Georgia, Marshall specifically described the tribes as "domestic dependant nations" whose relation to the United States was like "that of a ward to his guardian." Similarly, in Worcester v. Georgia, Marshall declared that the federal government had entered into a special relationship with the Cherokees through the treaties they had signed, a relationship involving certain moral obligations. "The Cherokees," he wrote, "acknowledge themselves to be under the protection of the United States, and of no other power. Protection does not imply the destruction of the protected."

The federal government has often used this trust relationship to justify its actions on behalf of Native American tribes, such as its defense of Indian fishing and hunting rights and the establishment of the Bureau of Indian Affairs. Perhaps more often, however, the federal government has used the claim of a trust relationship to stretch its protective duty toward tribes into an almost unbridled power over them. The United States, for example, is the legal title-holder to most Indian lands, giving it the power to dispose of and manage those lands, as well as to derive income from them. The federal government has also used its powers in ways that seem inconsistent with a moral duty to protect Indian interests, such as terminating dozens of Indian tribes and consistently breaking treaty provisions. Because the trust responsibility is moral rather than legal, Native American tribes have had very little power or ability to enforce the promises and obligations of the federal government.

Several disputes have erupted over the relationship between the federal government and Native Americans. Beginning in 1998, beneficiaries of Individual Indian Money (IIM), which is held in trust by the federal government, brought a CLASS ACTION against the secretary of the interior and others, alleging mismanagement and breach of fiduciary duties against trustee-delegates of the funds. The case has spawned dozens of orders and rulings by the U.S. District Court for the District of Columbia.

In 1999, the district court in Cobell v. Babbitt, 91 F. Supp. 2d 1 (D.D.C. 1999), found that the secretary of the interior and others had violated their fiduciary duties and ordered the secretary to file quarterly reports detailing progress in fulfilling these orders. The U.S Court of Appeals for the District of Columbia Circuit affirmed this ruling in Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001). Since the appeals court ruling, the district court has considered numerous motions and has issued several orders, including a holding that the secretary of the interior and the secretary of the Treasury were guilty of civil CONTEMPT for refusing to comply with a court order to produce certain documents.

Other issues involving the federal government's power over Native Americans have likewise resulted in litigation. The struggle to define the jurisdictional boundaries between Native American tribal courts and state courts has occupied the federal courts for many years. Although Indian reservations are deemed sovereign states, both Congress and the U.S. Supreme Court have placed limitations on their sovereignty. Therefore, as specific issues arise about tribal court jurisdiction, the federal courts must intervene to decide these cases.

Such was the case in Nevada v. Hicks, 533 U.S. 353, 121 S. Ct. 2304, 150 L. Ed. 2d 398 (2001), in which the U.S. Supreme Court ruled that tribal courts do not have jurisdiction to hear federal CIVIL RIGHTS lawsuits concerning allegedly unconstitutional actions by a state government officer on tribal land. The case arose when the home of a member of the Fallon Paiute-Shoshone Tribes of western Nevada was searched under suspicion that the tribe member had killed a bighorn sheep in violation of Nevada law. The tribe member brought a federal civil rights lawsuit against the game warden who had searched his house. The suit was brought in tribal court, which ruled that it had jurisdiction to hear the claim against the warden.

The district court and the U.S. Court of Appeals for the Ninth Circuit both found that the warden was required to exhaust his remedies in the tribal court before proceeding to federal court. The U.S. Supreme Court, per Justice ANTONIN SCALIA disagreed, finding that Congress had not extended the jurisdiction of tribal court to hear federal civil rights claims. The case severely limits the scope of tribal jurisdiction.

A generation of Indian law scholars has roundly, and rightly, criticized the Supreme Court’s invocation of the political question doctrine to deprive tribes of meaningful judicial review when Congress has acted to the detriment of tribes. Similarly, many Indian law scholars view the plenary power doctrine — that Congress has expansive, virtually unlimited authority to regulate tribes — as a tool that fosters and formalizes the legal oppression of Indian people by an unchecked Federal government. The way courts have applied these doctrines in tandem has frequently left tribes without meaningful judicial recourse against breaches of the federal trust responsibility or intrusions upon tribal interests and sovereignty. Furthermore, there is a troubling inconsistency in the courts’ application of these doctrines to questions of inherent tribal sovereignty. For example, courts consider congressional abrogation of a treaty a kind of political question beyond the reach of the judiciary. At the same time, challenges to the inherent, or aboriginal, authority of tribes are deemed justiciable. The Court’s approach represents a kind of “heads I win; tails you lose” application of the political question and plenary power doctrines in Indian affairs.

This paper proposes that rather than facing a rigged coin toss in the courts, tribes should be able to avail themselves of the political question and plenary power doctrines to have Congress rather than the courts decide questions of inherent tribal authority. Under current precedent, the Court has aggrandized its own power in Indian affairs through the theory of implicit divestiture, which holds that the Court may find tribes divested of inherent powers even without Congressional action. This Article argues that whether inherent tribal authority endures and which sovereign powers tribes exercise are political rather than judicial questions given the current landscape of plenary power, political question, and implicit divestiture doctrines in Indian law. Under this reading of the Court’s Indian law precedent, unless the Supreme Court reexamines these fundamental assumptions, the Supreme Court should treat questions challenging inherent tribal authority in much the same way it treats questions raised by tribes challenging congressional exercise of the Indian affairs power: as political questions that do not present justiciable controversies. This argument builds upon the author’s earlier work assessing the comparative institutional competency of Congress and the courts with regard to questions of inherent tribal authority and proposes a fundamental shift in the conception of the plenary power doctrine and the political question doctrine’s application in federal Indian law. Scholars have traditionally rejected and critiqued both the plenary power and the political question doctrines in Indian affairs because they leave a discrete and insular minority vulnerable to political whims. The critique has generally envisioned the Court as a counter-majoritarian bastion standing between the tyranny of the majority and the tribes. However, in recent decades, the Court has been the instrument for eroding inherent tribal authority, primarily without the input of Congress. This paper challenges long-held assumptions about these fundamental doctrines of federal Indian law and poses important questions about the role of the courts and the Congress, and the future of inherent tribal sovereignty.

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The New Qualified Immunity

Aaron L. Nielson & Christopher J. Walker, The New Qualified Immunity, 89 S. Cal. L. Rev. 1 (2015)

The New Qualified Immunity

qualified immunity, constitutional law, Supreme Court, discretion, federal courts of appeals, Pearson

In 2009, the Supreme Court changed the procedures for a significant aspect of constitutional litigation. In Pearson v. Callahan, the Court rejected a rigid requirement that in assessing qualified immunity, courts must first address whether a constitutional right was violated and, if so, only then address whether that right was clearly established. After Pearson, where the right is not clearly established, courts have discretion to either dismiss the claim without going further or decide the constitutional question for the benefit of future litigants.

By analyzing over 800 published and unpublished qualified immunity decisions, this Article offers the first comprehensive study on the effects of Pearson in the federal courts of appeals. The results are revealing. Most important, this Article shows that Pearson's procedural rule may affect the substantive development of constitutional law in at least three ways. First, the data suggest that concerns about "constitutional stagnation" may contain some truth. Specifically, although appellate courts are still deciding constitutional questions most of the time, they may not be deciding certain types of questions. Second, there is disparity among circuits regarding whether and how courts are reaching constitutional questions after Pearson. Because circuit courts frequently follow each other's cases, this disparity may give certain circuits an outsized voice regarding constitutional law. And third, it is possible that Pearson may have an asymmetric impact on constitutional doctrine because of the potential overlap between judges' substantive constitutional views based on their judicial ideologies and their procedural willingness to decide constitutional questions. Over the long run, this asymmetry between judges may shift the substance of constitutional precedent.

All of this suggests that the Supreme Court may be wise to revisit Pearson. To promote a more consistent development of constitutional law, this Article recommends that qualified immunity's procedural standard evolve once more to require courts to give reasons for their exercise of Pearson discretion--akin to administrative law's reasoned-decisionmaking requirement. Although Pearson sets forth a number of factors courts should consider when determining whether to exercise their discretion to decide constitutional questions, courts rarely provide their reasoning. This Article demonstrates why that should change.

Southern California Law Review

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The Modern Business Judgment Rule

D. Gordon Smith, The Modern Business Judgment Rule, Rᴇsᴇᴀʀᴄʜ Hᴀɴᴅʙᴏᴏᴋ ᴏɴ Mᴇʀɢᴇʀs ᴀɴᴅ Aᴄǫᴜɪsɪᴛɪᴏɴs 83 (Steven Davidoff Solomon & Claire Hill eds., 2016).

business judgment, board of directors, corporate law, corporate governance, Delaware

For over 150 years, the business judgment rule performed a relatively straightforward task in the corporate governance system of the United States, namely, protecting corporate directors from liability for honest mistakes. Under the traditional version of the business judgment rule, when the board of directors is careful, loyal, and acting in good faith, courts refuse to second-guess the merits of the board’s decisions, even if the corporation and its shareholders are harmed by those decisions. While modern courts continue to insulate directors from liability for honest mistakes according to this traditional formula, in the 1980s Delaware courts began assigning the business judgment rule a more expansive role. The modern business judgment rule is applied not only in cases without procedural infirmities, but in cases where procedural infirmities at the board level have been mitigated by a special committee, stockholder approval, or partial substantive review by the court. In these new contexts, a court must satisfy itself that a board decision is worthy of respect, not because the decision was substantively correct, but because the effect of the procedural infirmities was sufficiently muted. After the court reaches that point, the business judgment rule “attaches” to protect the substantive merits of the decision from (further) review. The modern business judgment rule is not a one-size-fits-all doctrine, but rather a movable boundary, marking the shifting line between judicial scrutiny and judicial deference. In describing the transformation of the business judgment rule, this chapter focuses on Delaware judicial opinions, with special attention to cases involving mergers and acquisitions, where the most important changes in the business judgment rule have been forged. The scripting of the business judgment rule’s new role by the Delaware courts is a work in progress, and the current law is inconsistent and confusing. Nevertheless, I trace the development of the modern business judgment rule and attempt to rationalize that development around the simple idea that the rule guides courts through the review of director conduct and marks the point at which judicial evaluation of a decision ends.

BYU Law Research Paper Series No. 15-09

Research Handbook on Mergers and Acquisitions, Forthcoming

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Brigham Daniels & Lisa Grow Sun, Mirrored Externalities, 90 Nᴏᴛʀᴇ Dᴀᴍᴇ L. Rᴇᴠ. 135 (2014).

A fundamental but underappreciated truth is that positive and negative externalities are actually mirror reflections of each other. What we call “mirrored externalities” exist because any action with externalities associated with it can be described as a choice to do or to refrain from doing that particular action. For example, if a person smokes and thereby creates a negative externality of more secondhand smoke, then her choice not to smoke creates a positive externality of less secondhand smoke. Conversely, if a person’s choice to get an immunization confers a positive externality of reducing vectors for disease transmission, then a choice not to get an immunization necessarily imposes negative externalities on third parties in the form of more vectors for disease. In each set, the negative externalities are the inverse — the mirror image — of the positive externalities. Thus, we have two possible characterizations or framings of any decision, one of which focuses on negative externalities and the other of which focuses on positive externalities. Which framing tends to predominate may be influenced by a number of factors, including society’s baseline sense of the actor’s legal or moral entitlement to engage in (or refrain from engaging in) particular behavior, the availability of a villain to whom to ascribe negative externalities, and the relative invisibility of certain externalities until disaster strikes, when the negative framing becomes the face of the crisis.Ultimately, the framing of externalities has profound effects on both the way we think about and process externalities and on our politics and policy development. We see profound potential impacts of framing on human perception of risk and opportunities, particularly due to the implications of the Nobel Prize-winning work of behavioral economists Amos Tversky and Daniel Kahneman. Their work on human perception suggests that due to loss aversion, the availability heuristic, and our bimodal response to catastrophic risk, we will give much greater weight and attention to negative externalities and consistently undervalue positive externalities. While positive externality frames are more effective in inspiring voluntary action, negative frames have serious implications for policy decision-making. The choice to emphasize either the positive or negative externality in the mirrored set shapes the array of policy prescriptions we are likely to consider. The same choice may affect whether we think there is a real problem to be solved in the first instance. We find loss aversion at work in policymaking as well: negative externalities, we suggest, are often viewed as a call to action, while positive externalities are viewed merely as an occasion for celebration. Lastly, the negative-externality “call to action” is often a concerted campaign to redefine the legal and social meaning of particular activities.

Given the critical role externalities play in justifying both development of property rights and intervention in markets and individual liberties, understanding mirrored externalities and the consequences of our framing of them is vital.

90 Notre Dame L. Rev. 135

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Frederick Mark Gedicks & Rebecca G. Van Tassell, RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion, 49 Hᴀʀᴠ. C.R.-C.L. L. Rᴇᴠ. 343 (2014).

ACA, accommodation of religion, Affordable Care Act, contraception mandate, contraceptives, Establishment Clause, exemptions, Free Exercise Clause, permissive accommodation, RFRA, Religious Freedom Restoration Act

Litigation surrounding use of the Religious Freedom Restoration Act to exempt employers from the Affordable Care Act’s “contraception mandate” is moving steadily towards resolution in the U.S. Supreme Court. Both opponents and supporters of the mandate, however, have overlooked the Establishment Clause limits on such exemptions.

The heated religious-liberty rhetoric aimed at the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion — a government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that the accommodation not impose material burdens on third parties who do not believe or participate in the accommodated practice.

While it is likely that RFRA facially complies with the Establishment Clause, it violates the Clause’s limits on permissive accommodation as applied to the mandate. RFRA exemptions from the mandate would deny the employees of an exempted employer their ACA entitlement to contraceptives without cost-sharing, forcing employees to purchase with their own money contraceptives and related services that would otherwise be available to them at no cost beyond their share of the healthcare insurance premium.

Neither courts nor commentators seem aware that a line of permissive accommodation decisions prohibits shifting of material costs of accommodating anti-contraception beliefs from the employers who hold them to employees who do not. Many of the Court's decisions under the Free Exercise Clause and Title VII also exhibit this concern with cost-shifting accommodations. Yet, one federal appellate court has already mistakenly dismissed this cost-shifting as irrelevant to the permissibility of RFRA exemptions from the mandate.

The impermissibility of cost-shifting under the Establishment Clause is a threshold doctrine whose application is logically prior to all of the RFRA issues on which the courts are now focused: If RFRA exemptions from the mandate violate the Establishment Clause, then that is the end of RFRA exemptions, regardless of whether for-profit corporations are persons exercising religion, the mandate is a substantial burden on employers’ anti- contraception beliefs, or the mandate is not the least restrictive means of protecting a compelling government interest.

Part I summarizes the legal mechanics of the mandate and briefly describes the three classes of anti-mandate plaintiffs — churches, religious nonprofit organizations, and for-profit businesses owned by anti-contraception believers. Part II details Establishment Clause doctrine that prohibits permissive accommodations that impose material burdens on third parties. Part III applies this rule to RFRA exemptions from the mandate, showing that the cost- shifting entailed by such exemptions violates the Establishment Clause. Part II also surveys free-exercise and Title VII decisions influenced by the same concern. We conclude that the existing regulatory regime that exempts churches, accommodates religious nonprofits, and leaves for-profit businesses subject to the mandate is the proper balance of private and government interests in the radically plural society that the United States has become.

Harvard Civil Rights-Civil Liberties Law Review

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