Legal Anomalies in Federal Indian Law, Part II—Tribal Jurisdiction Over Non-Indians

Federal Indian Law—the legal provisions and doctrines governing the respective statuses of, and relations among, the federal, state, and tribal governments—is replete with seeming anomalies when compared to the background of typical domestic law in the United States. The purpose of this post, and of the series of which it is a part, is to identify and examine such anomalies in an effort to acquaint readers with the metes and bounds of Federal Indian Law, while shedding some light on the origins and perhaps the future of this unique legal realm.

The prior post examined one such anomaly, namely, the permissibility of the government’s differential treatment of Indian tribes and their members despite the U.S. Constitution’s guarantee of equal protection. In this, the second installment in the series, another topic of significant contemporary interest will be surveyed. This is the oddly diminished character of Indian tribal sovereignty and, in particular, the extent to which tribes, in their own territories, lack criminal and civil authority over non-Indians or non-tribal members.

The capacity to enact and enforce laws is, of course, one of the hallmarks of sovereignty within the Western political tradition. This includes both criminal laws and civil laws, the latter often being divided into powers of regulation, taxation, and adjudication. It is typically accepted, moreover, that the reach of a sovereign’s laws extends along two axes: citizenship and territory. That is, the sovereign has the authority to govern not only its citizens but also all others who enter its territory. Thus, for example, inquiries into the jurisdiction of courts over a person or his property ordinarily entail an examination of the person’s citizenship and/or the relationship between the person’s conduct or property and the territory of the sovereign to which the courts belong.

In recent decades, however, Indian tribal sovereignty has increasingly been confined to a single axis—that of citizenship—leaving tribes largely powerless to enforce their laws against non-Indians who, within the tribe’s territory, commit criminal conduct or engage in activities that would normally be susceptible to regulation, taxation, or adjudication. Perhaps surprisingly, the institution primarily responsible for this diminishing conception of tribal sovereignty is not Congress, which the Supreme Court has repeatedly described as having “plenary power” over Indian affairs, but rather the Court itself.

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First Sale, “Lawfully Made,” and Copyright Stalking-Horses

The Supreme Court heard oral argument this morning in Kirtsaeng v. John Wiley & Sons, Inc., despite Hurricane Sandy’s imminent arrival and the fact the entire federal government in Washington DC is shut down today. Kirtsaeng is a copyright case raising the issue, argued two years ago in Costco Wholesale Corp. v. Omega, S.A., of whether the first sale doctrine applies to third-party imports of goods manufactured under the authority of the copyright owner abroad. (Costco resulted in a 4-4 affirmance due to Justice Kagan’s recusal.) In more plain English, if someone in the United States purchases legitimate copies of some item abroad that has a copyrighted work somewhere in it, can they import those items into the United States and resell them here without violating the Copyright Act? The specific issue in Kirtsaeng involves used textbooks, but it could just as easily apply to watches with a copyrighted logo on the back (the good at issue in Omega), shampoo with a copyrighted label on the bottle (Quality King v. L’Anza), or any product with copyrighted software in it.

Costco indicates the mischief that could come about from a holding saying that the first sale doctrine does not apply to imported goods. There is zero chance that Omega was actually concerned about the redistribution of its copyrighted logo, located inconspicuously on the backs of its watches, as opposed to the grey market arbitrage of the watches themselves, which of course are not copyrightable. But mischief that does not rise to a constitutional level doesn’t tell us what the law is. The arguments in Kirtsaeng focus on the meaning of the phrase “lawfully made under this title.” Section 109(a) provides that:

Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

Kirtsaeng, the petitioner, argues that “lawfully made under this title” means “made with the authority of the copyright owners as required by Title 17, or otherwise authorized by specific provisions of Title 17,” a theory Kirtsaeng borrows from the Solicitor General’s brief back in Quality King. Wiley argues that because Title 17 does not have extraterritorial application, “lawfully made under this title” must mean “lawfully made in the United States pursuant to Title 17.”

That’s the question that cert. was granted on, but the whole debate strikes me as off-target. As a result I don’t think either side’s briefs really grapple with the problem here.

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Seventh Circuit Affirms Life Sentence Notwithstanding Supreme Court’s Recent Eighth Amendment Decisions

From the time of its decision in Harmelin v. Michigan (1991), affirming a mandatory sentence of life without parole for a drug trafficking offense, through its decision in Ewing v. California (2003), affirming a de facto life sentence for shoplifting, the Supreme Court showed little interest in using the Eighth Amendment Cruel and Unusual Punishments Clause as a basis to limit the length of prison sentences.  More recently, however, the Court has begun to extend the principles it developed to regulate capital sentencing into the noncapital realm.  First, in Graham v. Florida (2010), the Court banned life without parole for juveniles not convicted of homicide.  Then, in Miller v. Alabama (2012), the Court banned the use of mandatory “LWOP” sentences for all juveniles — even those convicted of homicide.

The Court’s trajectory seems to threaten Harmelin.  Even if the logic of Graham permits LWOP for drug trafficking, the logic of Miller arguably requires a consideration of mitigating circumstances before the sentence can be imposed — prohibits, in other words, LWOP as a statutory minimum for a drug offense.

While the Supreme Court might eventually reach this destination, the Seventh Circuit has decided not to try to get there first.  

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