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An Argument for the Partial Abrogation of Federally-Recognized Indian Tribes’ Sovereign Power Over Citizenship

For many Native Americans, membership in a federally-recognized Indian tribe represents an affiliation as fundamental as American citizenship to Americans generally. Tribes are not only crucial conduits of economic and social services, but also tangible and vital connections to ancient racial and national affiliations. Yet as important as they are, in most tribes these connections may be summarily severed without appeal. 

Unlike either the state or federal governments, most Indian tribes retain the right to disenfranchise members from specific benefits, or simply to disenroll (forcibly expatriate) and banish from tribal lands even native born members. Federal case law suggests that these abuses are almost wholly irremediable both within the tribe and in the federal courts. Despite strong arguments to the contrary, the federal courts have consistently held that the powers provided to them under the Indian Civil Rights and Indian Gaming Regulatory Acts are essentially incapable of reaching tribal membership disputes.

This is not just an issue that affects scattered individuals. The nature of expatriation power is such that even if unexercised, it has the potential to significantly curb the political life of the tribe. Even a small number of instances can educate a large population on the costs and benefits of political dissent. Thus it is not just Indians as individuals who suffer when tribes abuse citizenship rights, but the tribe as a whole, as well as the legitimacy of the federal-Indian system of which it is a part. The power to disenroll removes from tribes the democratizing burden of working to compromise, stifling the development of populist values and participatory government. This Note first describes the historical and jurisprudential background of tribal citizenship, before arguing on the basis of individual civil rights and tribal republican development that the federal-Indian system would be well-served by affirmative Congressional action to remove from tribes the power to disenroll, disenfranchise and banish their members.

The Uneasy Case for Transjurisdictional Adjudication

Federal courts often decide cases that include matters of state law, while state courts often decide cases that raise matters of federal law. Most of these cases are decided within the court system in which they originate. Recent commentary advocates more transjurisdictional adjudication through the expanded use of existing procedural devices, and development of new devices. Some commentators endorse greater use of certification by federal courts, while others advocate greater use of transjurisdictional procedural devices to increase the availability of a federal forum to resolve federal legal issues. In this Article, I call for refinement of this approach and argue that commentators have overlooked several looming obstacles. First, the ability of state courts to resolve issues of state law and federal courts issues of federal law relies upon the erroneous assumption that issues of federal and state law are readily separable. Second, the use of transjurisdictional procedural devices that send back to state court state law issues that federal courts otherwise would decide run the risk of admitting state court bias, or the appearance of bias, against out-of-state litigants. Third, commentators underestimate the extent to which transjurisdictional adjudication relies upon cooperation between court systems. Identifying these obstacles leads to a fuller recognition of the costs and benefits of transjurisdictional adjudication, which in turn is useful as a metric against which to measure existing and proposed transjurisdictional procedural devices and as an aid in refining existing devices.

Solving the Extraterritoriality Problem: Lessons from the Honest Services Statute

The presumption against extraterritoriality is a canon of statutory interpretation that directs courts not to apply ambiguous domestic statutes to conduct that occurred abroad. Since articulating the basic elements of the presumption in its 1991 Aramco decision, the Supreme Court has applied and expanded the presumption in a fragmented manner, muddling the doctrine to the point of thwarting its usefulness as a canon of statutory interpretation. 

In the wake of Aramco, commentators discussed the proper scope of extraterritoriality doctrine, but much of this debate has since fallen silent. This Note seeks to revitalize the doctrine by identifying situations that courts recognize should trigger the presumption, and by suggesting how to modify the doctrine within the framework of existing Supreme Court cases so that the doctrine encompasses these situations. Appropriately addressing extraterritorial applications of statutes is increasingly important as the U.S. Government prosecutes foreign crimes more and more aggressively. 

This Note identifies two main problems with the currently unclear state of extraterritoriality doctrine. First, the doctrine fails to provide courts with the proper tools to avoid creating foreign law without explicit permission from Congress. Second, the current doctrine unsettles the balance of powers between the United States and foreign sovereigns, and among the branches of the federal government. The recent case of United States v. Giffen illustrates these two problems. This Note argues that the presumption should go beyond the Aramco framework and incorporate more recent Supreme Court decisions. It should direct courts to examine whether individual statutory terms and the general nature of the criminal statute are extraterritorial, presuming that Congress intends for statutory terms to apply domestically and for U.S. courts not to create foreign law.

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