Law Commons^™

Covid-19: The Federal Government, Federalism, South Dakota, And American Indians, Jordan Janson

Helm's School of Government Conference - American Revival: Citizenship & Virtue

This essay assesses the roles of the federal government and its relationship with Tribal Regions and states alike. Additionally, how COVID-19 affected states and localities and how different Presidential Administrations handled and responded to the pandemic while being compared with the state of South Dakota. Assessing whether or not the federal government overstepped reveals the preparedness of states. Certain states handled COVID-19-related issues better than others, and this essay addresses how Tribal Regions in states provided Governors with extreme complexities. Finally, this essay delves into the rights and responsibilities of the federal government and the state pertaining to American Indian …

The Real Wrongs Of Icwa, James G. Dwyer

Villanova Law Review

No abstract provided.

What The Trust? Overcoming Barriers To Renewable Energy Development In Indian Country, Malcolm M. Gilbert, Aspen B. Ward

Public Land & Resources Law Review

No abstract provided.

Avoiding The Pitfalls In Administrative Record Review Cases, Kim Wilson, Brian Brammer

Public Land & Resources Law Review

No abstract provided.

Corner Crossing: Unlocking Public Lands Or Invading The Airspace Of Landowners?, Kevin Frazier

Public Land & Resources Law Review

No abstract provided.

States Of Mind Or State Of Crime: Exploring The Prosecution Of Environmental Crimes In The Western United States, Joshua Ozymy, Melissa Ozymy

Public Land & Resources Law Review

No abstract provided.

Editors And Staff Members

Public Land & Resources Law Review

No abstract provided.

Amdip Annual Meeting Of Law School Diversity Professionals: Hosted By Roger Williams University School Of Law: April 23-25, 2024, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Amicus Brief Of Native Nations In Montana, Kathryn Shanley, And Denise Juneau, Held V. State Of Montana, Montana Supreme Court Docket No. Da 23-0575, Monte Mills, Jeremiah Chin, Mia Montoya Hammersley, Fredrick Ole Ikayo, Clare Derby, Natasha De La Cruz

Court Briefs

Montana’s Constitution specifically recognizes and protects the right of Native Nations and Indigenous individuals to preserve and sustain their cultural traditions through the education of future generations. These rights are inherently tied to the right to a clean and healthful environment.

The Real Wrongs Of Icwa, James G. Dwyer

Faculty Publications

Haaland v. Brackeen rejected federalism-based challenges to the Indian Child Welfare Act (ICWA) but signaled receptivity to future challenges based on individual rights. The adult-focused rights claims presented in Haaland, however, miss the mark of what is truly problematic about ICWA. This Article presents an in-depth, children’s-rights based critique of the Act, explaining how it violates a fundamental right against state exertion of power over central aspects of persons’ private lives to their detriment for illicit purposes. In fact, the Act’s defenders are complicit in the same sort of government violence that motivated ICWA’s enactment—erasing aspects of children’s heritage …

Revising The Indian Plenary Power Doctrine, M. Henry Ishtani, Alexandra Fay

Michigan Journal of Race and Law

The federal Indian law doctrine of Congressional plenary power is long overdue for an overhaul. Since its troubling nineteenth-century origins in Kagama v. United States (1886), plenary power has justified invasive Congressional interventions and undermined Tribal sovereignty. The doctrine's legal basis remains a constitutional conundrum. This Article considers the Court's recent engagement with plenary power in Haaland v. Brackeen (2023). It argues that the Brackeen opinions may signal judicial readiness to reevaluate the doctrine. The Article takes ahold of Justice Gorsuch's critical assessment and runs with it, ultimately proposing a method for cleaning up this destructive and constitutionally dubious line …

A Framework For Managing Disputes Over Intellectual Property Rights In Traditional Knowledge, Stephen R. Munzer

Michigan Journal of Race and Law

Major controversies in moral and political theory concern the rights, if any, Indigenous peoples should have over their traditional knowledge. Many scholars, including me, have tackled these controversies. This Article addresses a highly important practical issue: Can we come up with a solid framework for resolving disputes over actual or proposed intellectual property rights in traditional knowledge?

Yes, we can. The framework suggested here starts with a preliminary distinction between control rights and income rights. It then moves to four categories that help to understand disputes: nature of the traditional knowledge under dispute; dynamics between named parties to disputes; unnamed …

Reviving Indian Country: Expanding Alaska Native Villages’ Tribal Land Bases Through Fee-To-Trust Acquisitions, Alexis Studler

Michigan Journal of Race and Law

For the last fifty years, the possibility of fee-to-trust acquisitions in Alaska has been precarious at best. This is largely due to the Alaska Native Claims Settlement Act of 1971 (ANCSA), which eschewed the traditional reservation system in favor of corporate land ownership and management. Despite its silence on trust acquisitions, ANCSA was and still is cited as the primary prohibition to trust acquisitions in Alaska. Essentially, ANCSA both reduced Indian Country in Alaska and prohibited any opportunities to create it, leaving Alaska Native Villages without the significant territorial jurisdiction afforded to Lower 48 tribes. However, recent policy changes from …

Pursuing The Exemption: The Makah's White Whale, Sarah Van Voorhis

Washington Journal of Social & Environmental Justice

No abstract provided.

Narrowing From Below: How Lower Courts Can Limit Castro-Huerta, Michaela B. Parks

Arkansas Law Review

This Note will offer a plan for how Indian country can move forward in the wake of what anti-tribal sovereignty entities want to be a devasting decision. This Note advocates for a judicial remedy plan. Specifically, it calls upon lower courts to narrow Castro-Huerta from below to limit the effects of the decision. Part II provides a brief introduction to federal Indian law, a general overview of criminal jurisdiction in Indian country, and concludes with a summary of Castro-Huerta. Part III outlines two approaches to limiting that lower courts can use to narrow Castro-Huerta from below: textual limiting and fact-to-fact …

Tribal Court Jurisdiction And The Exhausting Nature Of Federal Court Interference, Kekek Jason Stark

University of Cincinnati Law Review

No abstract provided.

Evolving Sovereignty Relationships Between Affiliated Jurisdictions: Lessons For Native American Jurisdictions, Vaughan Carter, Charlotte Ku, Andrew P. Morriss

Faculty Scholarship

Though sovereignty is principally associated with governance over a territory and freedom to act in the international arena, this article examines sovereignty as empowerment. The study tests the applicability to Native American jurisdictions of the experiences of fifteen case study jurisdictions presently associated with the United Kingdom, the Netherlands, and France in shared sovereign relationships. The focus is on the evolution of those relationships and opportunities for development where jurisdictions do not attain full control over their affairs. The case studies examine the relationships from the perspectives of political, economic, and cultural sovereignty. The article further examines the relationships in …

Sackett V. Environmental Protection Agency, Meridian Wappett

Public Land & Resources Law Review

In 2007, the Sacketts began developing a property a few hundred feet from Priest Lake in Northern Idaho by filling their lot with gravel. The EPA determined the lot constituted a federally protected wetland under the WOTUS definition because the lot was near a ditch that fed into a creek flowing into Priest Lake, a navigable intrastate lake. The EPA halted the construction. The Sacketts sued the EPA, arguing the CWA did not apply to their property. The Supreme Court held that the CWA did not apply to the Sacketts property because the CWA only covers wetlands and streams that …

Arizona V. Navajo Nation, Sarah K. Yarlott

Public Land & Resources Law Review

Arizona v. Navajo Nation clarified the United States’ trust duties to protect tribal water rights under the Winters doctrine and the 1868 Treaty with the Navajo. Under the Winters doctrine, Indian reservations are permanent homes that include an implicit reservation of water rights. However, Winters did not elaborate on the United States’ role in securing those rights. In Navajo Nation, the Court settled whether the United States has an implied duty under its trust obligations to take affirmative steps in securing water rights for tribes; the Court held no such implied duty exists.

Brief Of Legal Scholars As Amici Curiae In Support Of Respondents, Becerra V. San Carlos Apache Tribe, Becerra V. Northern Arapaho Tribe, U.S. Supreme Court Docket Nos. 23-250 & 23-253, Gregory Ablavsky, Seth Davis, Patty Ferguson-Bohnee, Ethan J. Leib, Dan Lewerenz, Nazune Menka, Monte Mills, Richard Monette, Joseph William Singer, Gerald Torres, Rebecca Tsosie

Court Briefs

Congress has enacted into law thousands of statutory provisions containing rules of construction. These rules direct courts to the permissible interpretations of the statutes that Congress enacts.

With respect to the self-determination contracts between Indian tribes and the United States at issue in these cases, the Indian Self-Determination and Education Assistance Act (ISDA) prescribes two interpretive rules that serve as congressional directives to this Court. First, each provision of the self-determination contract must be construed liberally for the benefit of the tribe. Second, the same is true of the statute itself: each provision of the ISDA must be construed liberally …

Seeding A Movement: Indigenous Food Sovereignty, Mariaelena Huambachano

University of Miami Law Review

For many Indigenous peoples, well-being is bound up with and inseparable from the natural world. But since colonialism, Indigenous traditions and access to traditional foods or foodways have been disrupted, imperiling their health and well-being. In this Article, I discuss the role of Indigenous cosmovision/worldview and Indigenous Food Sovereignty in achieving environmental justice. Specifically, in this Article, I discuss that despite, or perhaps because of, efforts to deny Indigenous peoples’ access to healthy and culturally appropriate foods, Indigenous Food Sovereignty took a rise of preciousness in informing natural regenerative food systems, and ultimately, “holistic/collective well-being.”

Indigenous Knowledge As Evidence In Federal Rule-Making, Edward Randall Ornstein

University of Miami Law Review

Recent and historic federal guidance instructs agencies to consider Indigenous Knowledge in decision-making where it is available. However, tribal advocates are faced with many hurdles, in the form of “information quality” criteria, which requires the collection and dissemination of Indigenous Knowledge to conform to a complex set of procedural rules before agencies may be willing to consider it as evidence for rule-making. This Article seeks to define Indigenous Knowledge, highlight the hurdles to its implementation by federal agencies, and equip tribal advocates and officials with strategies and a demonstrative example of best practices for the packaging and presentation of Indigenous …

Examining The Examiner: An Amicus Brief On Conflicts Between Forensic Technology And Indigenous Religious Freedoms In Favor Of Virtual Autopsies, Peyton James

The Journal of Purdue Undergraduate Research

No abstract provided.

The Need For Corporate Guardrails In U.S. Industrial Policy, Lenore Palladino

Seattle University Law Review

U.S. politicians are actively “marketcrafting”: the passage of the Bipartisan Infrastructure Law, the CHIPS and Science Act, and the Inflation Reduction Act collectively mark a new moment of robust industrial policy. However, these policies are necessarily layered on top of decades of shareholder primacy in corporate governance, in which corporate and financial leaders have prioritized using corporate profits to increase the wealth of shareholders. The Administration and Congress have an opportunity to use industrial policy to encourage a broader reorientation of U.S. businesses away from extractive shareholder primacy and toward innovation and productivity. This Article examines discrete opportunities within the …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …

Stakeholder Governance As Governance By Stakeholders, Brett Mcdonnell

Seattle University Law Review

Much debate within corporate governance today centers on the proper role of corporate stakeholders, such as employees, customers, creditors, suppliers, and local communities. Scholars and reformers advocate for greater attention to stakeholder interests under a variety of banners, including ESG, sustainability, corporate social responsibility, and stakeholder governance. So far, that advocacy focuses almost entirely on arguing for an expanded understanding of corporate purpose. It argues that corporate governance should be for various stakeholders, not shareholders alone.

This Article examines and approves of that broadened understanding of corporate purpose. However, it argues that we should understand stakeholder governance as extending well …

Corporate Law In The Global South: Heterodox Stakeholderism, Mariana Pargendler

Seattle University Law Review

How do the corporate laws of Global South jurisdictions differ from their Global North counterparts? Prevailing stereotypes depict the corporate laws of developing countries as either antiquated or plagued by problems of enforcement and misfit despite formal convergence. This Article offers a different view by showing how Global South jurisdictions have pioneered heterodox stakeholder approaches in corporate law, such as the erosion of limited liability for purposes of stakeholder protection in Brazil and India, the adoption of mandatory corporate social responsibility in Indonesia and India, and the large-scale program of Black corporate ownership and empowerment in South Africa, among many …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.