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Articles 1 - 8 of 8
Full-Text Articles in Law
Whose Standards Control? Maine V. Mccanhy And The Federal, State, And Tribal Battle Over Water Quality Regulation, Joseph Paul Mortelliti
Whose Standards Control? Maine V. Mccanhy And The Federal, State, And Tribal Battle Over Water Quality Regulation, Joseph Paul Mortelliti
Michigan Journal of Environmental & Administrative Law
This Note considers the longstanding clash between the United States government and state governments over the management of intrastate waters through the lens of Maine v. McCarthy, an ongoing federal lawsuit. McCarthy confronts whether the United States Environmental Protection Agency can require state water quality standards to specifically safeguard the health and cultural practices of Maine’s Indian tribes, particularly sustenance fishing. A panoply of legal and political factors gave rise to and shaped the course of the litigation, ranging from tribal sovereignty to agency discretion and political gamesmanship. After evaluating the litigants’ arguments and examining previous regulatory collisions between …
Returning To The Tribal Environmental "Laboratory": An Examination Of Environmental Enforcement Techniques In Indian Country, Elizabeth Ann Kronk Warner
Returning To The Tribal Environmental "Laboratory": An Examination Of Environmental Enforcement Techniques In Indian Country, Elizabeth Ann Kronk Warner
Michigan Journal of Environmental & Administrative Law
Governments, including tribes, need to protect one of humankind’s most valuable resources: the environment. In addition to environmental regulations, effective enforcement mechanisms are key to successful efforts to protect the environment. While much has been written about the environmental enforcement mechanisms of states and the federal government, little scholarly attention has been paid to how tribal governments are working to protect their environments. Given that there are 567 federally recognized tribes and approximately 56.2 million acres held in trust for tribes in the United States, such oversight is significant. This Article fills a scholarly void with a description of environmental …
San Manuel'S Second Exception: Identifying Treaty Provisions That Support Tribal Labor Sovereignty, Briana Green
San Manuel'S Second Exception: Identifying Treaty Provisions That Support Tribal Labor Sovereignty, Briana Green
Michigan Journal of Environmental & Administrative Law
Inspired by the holding in WinStar World Casino, this Note considers the potential for tribes to make treaty-based arguments when facing the threat of National Labor Relations Board jurisdiction. This Note presents the results of a survey of U.S. government treaties with Native Americans to identify those treaties with language similar to that interpreted by the Board in WinStar World Casino. The survey identified four treaties and four tribes that could make treaty-based arguments like those made in Winstar World Casino: the Confederated Tribes of the Umatilla Indian Reservation, the Muscogee (Creek) Nation, the Seminole Nation of …
Exploring Alternatives To The "Consultation Or Consent" Paradigm, Jason Searle
Exploring Alternatives To The "Consultation Or Consent" Paradigm, Jason Searle
Michigan Journal of Environmental & Administrative Law
The Dakota Access Pipeline brought the question of what adequate tribal consultation requires to the forefront. Some would argue that consultation is a weak standard and that only adopting a new standard of free, prior, and informed consent can guarantee tribes greater control and respect. However, the “consultation or consent” paradigm does not take into account important sources of law that do not fit under “consultation” or “consent” and yet could be valuable in strengthening tribes’ claims in the absence of a consent standard.
We Need Protection From Our Protectors: The Nature, Issues, And Future Of The Federal Trust Responsibility To Indians, Daniel I.S.J. Rey-Bear, Matthew L.M. Fletcher
We Need Protection From Our Protectors: The Nature, Issues, And Future Of The Federal Trust Responsibility To Indians, Daniel I.S.J. Rey-Bear, Matthew L.M. Fletcher
Michigan Journal of Environmental & Administrative Law
The federal trust responsibility to Indians essentially entails duties of good faith, loyalty, and protection. While often thought of as unique to federal Indian policy, it developed from and reflects common law principles of contracts, property, trusts, foreign relations/international law, and constitutional law. However, several issues preclude a greater understanding and implementation of the federal trust responsibility. These include Executive Branch efforts to avoid liability, neocolonial judicial activism, and episodic congressional attention. Enactment of legislation to reaffirm and modernize the federal trust responsibility through greater self-determination, integration, elevation, oversight, and funding should help overcome these issues to improve federal Indian …
“Why Should I Go Vote Without Understanding What I Am Going To Vote For?” The Impact Of First Generation Voting Barriers On Alaska Natives, James Thomas Tucker, Natalie A. Landreth, Erin Dougherty Lynch
“Why Should I Go Vote Without Understanding What I Am Going To Vote For?” The Impact Of First Generation Voting Barriers On Alaska Natives, James Thomas Tucker, Natalie A. Landreth, Erin Dougherty Lynch
Michigan Journal of Race and Law
This article explores the many forms of discrimination that have persisted in Alaska, the resulting first generation voting barriers faced by Alaska Native voters, and the two contested lawsuits it took to attain a measure of equality for those voters in four regions of Alaska: Nick v. Bethel and Toyukak v. Treadwell. In the end, the court’s decision in Toyukak came down to a comparison of just two pieces of evidence: (1) the Official Election Pamphlet that English-speaking voters received that was often more than 100 pages long; and (2) the single sheet of paper that Alaska Native language …
Legacy In Paradise: Analyzing The Obama Administration’S Efforts Of Reconciliation With Native Hawaiians, Troy J.H. Andrade
Legacy In Paradise: Analyzing The Obama Administration’S Efforts Of Reconciliation With Native Hawaiians, Troy J.H. Andrade
Michigan Journal of Race and Law
This Article analyzes President Barack Obama’s legacy for an indigenous people—nearly 125 years in the making—and how that legacy is now in considerable jeopardy with the election of Donald J. Trump. This Article is the first to specifically critique the hallmark of Obama’s reconciliatory legacy for Native Hawaiians: an administrative rule that establishes a process in which the United States would reestablish a government-to-government relationship with Native Hawaiians, the only indigenous people in America without a path toward federal recognition. In the Article, Obama’s rule—an attempt to provide Native Hawaiians with recognition and greater control over their own affairs to …
Complexity's Shadow: American Indian Property, Sovereignty, And The Future, Jessica A. Shoemaker
Complexity's Shadow: American Indian Property, Sovereignty, And The Future, Jessica A. Shoemaker
Michigan Law Review
This Article offers a new perspective on the challenges of the modern American Indian land tenure system. While some property theorists have renewed focus on isolated aspects of Indian land tenure, including the historic inequities of colonial takings of Indian lands, this Article argues that the complexity of today’s federally imposed reservation property system does much of the same colonizing work that historic Indian land policies—from allotment to removal to termination—did overtly. But now, these inequities are largely overshadowed by the daunting complexity of the whole land tenure structure. This Article introduces a new taxonomy of complexity in American Indian …