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Articles 1 - 28 of 28
Full-Text Articles in Law
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 …
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 …
Predicate Offenses, Foreign Convictions, And Trusting Tribal Courts, Alexander S. Birkhold
Predicate Offenses, Foreign Convictions, And Trusting Tribal Courts, Alexander S. Birkhold
Michigan Law Review Online
Concerns about the reliability of criminal justice systems in foreign countries have resulted in uneven treatment of foreign convictions in U.S. courts. Federal courts, however, have historically accepted tribal court convictions as predicate offenses under recidivist statutes. But the Ninth Circuit Court of Appeals recently rejected the uncounseled convictions obtained against Michael Bryant, Jr., a serial domestic abuser, in the Northern Cheyenne Tribal Court. The court dismissed a federal indictment that had been brought against Bryant under 18 U.S.C § 117, which makes it a felony to commit domestic violence against a spouse or partner in Indian country if the …
The Right To Counsel For Indians Accused Of Crime: A Tribal And Congressional Imperative, Barbara L. Creel
The Right To Counsel For Indians Accused Of Crime: A Tribal And Congressional Imperative, Barbara L. Creel
Michigan Journal of Race and Law
Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it …
A Native Vision Of Justice, Carole Goldberg
A Native Vision Of Justice, Carole Goldberg
Michigan Law Review
Although largely unheralded in its time, D'Arcy McNickle's The Surrounded has become a classic of Native American literature. When the University of New Mexico Press reissued the book in 1978, a year after McNickle's death, the director of Chicago's Newberry Library, Lawrence W. Towner, predicted (correctly) that it would "reach a far wider audience." Within The Surrounded are early stirrings of a literary movement that took flight several decades after the novel's first publication in the writings of N. Scott Momaday, Louise Erdrich, James Welch, Leslie Marmon Silko, and Gerald Vizenor, among others. All of these Native American authors share …
Uncounseled Tribal Court Guilty Pleas In State And Federal Courts: Individual Rights Versus Tribal Self-Governance, Christiana M. Martenson
Uncounseled Tribal Court Guilty Pleas In State And Federal Courts: Individual Rights Versus Tribal Self-Governance, Christiana M. Martenson
Michigan Law Review
Indian tribes in the United States are separate sovereigns with inherent self-governing authority. As a result, the Bill of Rights does not directly bind the tribes, and criminal defendants in tribal courts do not enjoy the protection of the Sixth Amendment right to counsel. In United States v. Ant, a defendant - without the legal assistance that a state or federal court would have provided - pled guilty to criminal charges in tribal court. Subsequently, the defendant faced federal charges arising out of the same events that led to the tribal prosecution. The Ninth Circuit in Ant barred the federal …
Toward Genuine Tribal Consultation In The 21st Century, Colette Routel, Jeffrey Holth
Toward Genuine Tribal Consultation In The 21st Century, Colette Routel, Jeffrey Holth
University of Michigan Journal of Law Reform
The federal government's duty to consult with Indian tribes has been the subject of numerous executive orders and directives from past and current U.S. Presidents, which have, in turn, resulted in the proliferation of agency-specific consultation policies. However, there is still no agreement regarding the fundamental components of the consultation duty. When does the consultation duty arise? And what does it require of the federal government? The answers to these questions lie in the realization that the tribal consultation duty arises from the common law trust responsibility to Indian tribes, which compels the United States to protect tribal sovereignty and …
Embracing Tribal Sovereignty To Eliminate Criminal Jurisdiction Chaos, Lindsey Trainor Golden
Embracing Tribal Sovereignty To Eliminate Criminal Jurisdiction Chaos, Lindsey Trainor Golden
University of Michigan Journal of Law Reform
This Note argues that the current federal laws regarding tribal criminal jurisdiction are contrary to existing policies that recognize inherent tribal sovereignty, and that to fully restore tribal sovereignty and reduce reservation crime rates, Congress should revise the MCA and the TLOA to comprehensively address the legal barriers that adversely affect tribes' ability to prosecute crimes committed within their geographic borders. Part I outlines the historical progression of laws addressing criminal jurisdiction in Indian Country and identifies the problems with the law's disregard and displacement of tribal sovereignty. Part II examines the current state of criminal jurisdiction on reservations-focusing on …
Steps To Alleviating Violence Against Women On Tribal Lands, Anjum Unwala
Steps To Alleviating Violence Against Women On Tribal Lands, Anjum Unwala
University of Michigan Journal of Law Reform Caveat
One in three Native American women has been raped or has experienced an attempted rape. Federal officials also failed to prosecute 75% of the alleged sex crimes against women and children living under tribal authority. The Senate bill to reauthorize the 1994 Violence Against Women Act (VAWA) could provide appropriate recourse for Native American women who are victims of sexual assault. This bill (S. 1925), introduced in 2011, would grant tribal courts the ability to prosecute non-Indians who have sexually assaulted their Native American spouses and domestic partners. Congress has quickly reauthorized the Violence Against Women Act twice before. But …
Williams V. Lee And The Debate Over Indian Equality, Bethany R. Berger
Williams V. Lee And The Debate Over Indian Equality, Bethany R. Berger
Michigan Law Review
Williams v. Lee (1959) created a bridge between century-old affirmations of the immunity of Indian territories from state jurisdiction and the tribal self-determination policy of the twentieth century. It has been called the first case in the modern era of federal Indian law. Although no one has written a history of the case, it is generally assumed to be the product of a timeless and unquestioning struggle of Indian peoples for sovereignty. This Article, based on interviews with the still-living participants in the case and on examination of the congressional records, Navajo council minutes, and Supreme Court transcripts, records, and …
Crow Dog Vs. Spotted Tail: Case Closed, Timothy Connors, Vivek Sankaran
Crow Dog Vs. Spotted Tail: Case Closed, Timothy Connors, Vivek Sankaran
Articles
In 1868, Chief Spotted Tail signed a United States government treaty with an X. Spotted Tail was a member of the Brule Sioux Tribe, related by marriage to Crazy Horse. The government treaty recognized the Black Hills as part of the Great Sioux reservation. As such, exclusive use of the Black Hills by the Sioux people was guaranteed. Monroe, Michigan, native Gen. George Custer changed all that. In 1874, he led an expedition into that protected land, announced the discovery of gold, and the rush of prospectors followed. Within two years, Custer attacked at Little Big Horn and met his …
Connecting The Dots Between The Constitution, The Marshall Trilogy, And United States V. Lara: Notes Toward A Blueprint For The Next Legislative Restoration Of Tribal Sovereignty, Ann E. Tweedy
University of Michigan Journal of Law Reform
This law review Article examines: (1) the underpinnings of tribal sovereignty within the American system; (2) the need for restoration based on the Court's drastic incursions on tribal sovereignty over the past four decades and the grave circumstances, particularly tribal governments' inability to protect tribal interests on the reservation and unchecked violence in Indian Country, that result from the divestment of tribal sovereignty; (3) the concept of restoration as illuminated by United States v. Lara, and finally (4) some possible approaches to partial restoration.
The Article first evaluates the constitutional provisions relating to Indians and the earliest federal Indian law …
Indigenous Recognition In International Law: Theoretical Observations, Patrick Macklem
Indigenous Recognition In International Law: Theoretical Observations, Patrick Macklem
Michigan Journal of International Law
This Essay addresses this question in the context of the evolving status of indigenous peoples in international law. International instruments vest rights in indigenous peoples, and establish indigenous peoples as international legal actors to whom States and other international legal actors owe legal duties and obligations. These developments began between the First and Second World Wars, when the International Labour Organization (ILO) began to supervise indigenous working conditions in colonies. They continued after the Second World War with ILO Conventions No. 107 and 169, which vested rights in indigenous populations located in States that are a party to their terms. …
A Race Or A Nation? Cherokee National Identity And The Status Of Freedmen's Descendants, S. Alan Ray
A Race Or A Nation? Cherokee National Identity And The Status Of Freedmen's Descendants, S. Alan Ray
Michigan Journal of Race and Law
This Article examines the Cherokee Freedmen controversy to assess whether law and biology can function as sufficient models for crafting Cherokee identity at this crucial moment in the tribe's history. The author will argue that while law and biology are historically powerful frames for establishing tribal self-identity, they are inadequate to the task of determining who should enjoy national citizenship. The wise use of sovereignty, the author suggests, lies in creating a process of sustained dialogical engagement among all stakeholders in the definition of Cherokee citizenship on the question of Cherokee identity. This dialogue should ideally have been undertaken before …
A Tale Of Conflicting Sovereignties: The Case Against Tribal Sovereign Immunity And Federal Preemption Doctrines Preventing States' Enforcement Of Campaign Contribution Regulations On Indian Tribes, Paul Porter
University of Michigan Journal of Law Reform
This Note will discuss whether Indian tribes can assert tribal sovereign immunity to avoid compliance with state campaign finance regulation and whether such regulations should be preempted by federal law. Tribal sovereign immunity is not an enshrined constitutional imperative; it exists only under federal common law and can be limited by the courts from blocking state suits to enforce campaign finance regulations against tribes. This Note will also argue that state campaign finance regulations should not be preempted by federal law because states have a compelling interest in protecting their political processes from corruption that outweighs tribal interests in flouting …
The Tribal Sovereign As Citizen: Protecting Indian Country Health And Welfare Through Federal Environmental Citizen Suits, James M. Grijalva
The Tribal Sovereign As Citizen: Protecting Indian Country Health And Welfare Through Federal Environmental Citizen Suits, James M. Grijalva
Michigan Journal of Race and Law
This Article suggests that federal environmental citizen suits can serve tribal sovereignty interests without presenting the legal risks tribes face when they attempt direct regulation of non-Indians. Section I briefly describes governmental regulatory roles tribes may play in the implementation of federal environmental law and policy. Section II overviews the conceptual and procedural framework for tribal claims as "citizens." Section III argues that in bringing environmental citizen suits, tribal governments exercise their inherent sovereign power and responsibility to protect the health and welfare of tribal citizens and the quality of the Indian country environment. Section IV concludes that, while suits …
Tribal Jurisdiction And Domestic Violence: The Need For Non-Indian Accountability On The Reservation, Amy Radon
Tribal Jurisdiction And Domestic Violence: The Need For Non-Indian Accountability On The Reservation, Amy Radon
University of Michigan Journal of Law Reform
Domestic violence is a severe problem for tribes across the nation, as their female members are victimized at highly disproportionate rates compared to members of dominant society. Many tribes have sophisticated domestic violence codes to combat the problem, but they are powerless to prosecute the majority of those who will abuse Indian women: non-Indian men. In 1978 the Supreme Court stripped tribes of their power to prosecute non-Indians in criminal matters, which not only damaged tribal sovereignty but also meant the difference between a life free from abuse and one with constant fear, intimidation, and pain for Indian women.
The …
A Whole New Game: Recognizing The Changing Complexion Of Indian Gaming By Removing The "Governor's Veto" For Gaming On "After-Acquired Lands", Brian P. Mcclatchey
A Whole New Game: Recognizing The Changing Complexion Of Indian Gaming By Removing The "Governor's Veto" For Gaming On "After-Acquired Lands", Brian P. Mcclatchey
University of Michigan Journal of Law Reform
The recent explosive growth of the Indian gaming industry and judicial decisions analyzing a portion of the governing statute point to an inherent flaw in the mechanism provided by the Indian Gaming Regulatory Act (IGRA) for the establishment of off-reservation gaming enterprises. This Note argues for a reform of the so-called "after-acquired lands" provision of IGRA, which would remove the governor's concurrence requirement and place the decision to allow Indian gaming off-reservation into the negotiating process between states and tribes, as another term to be negotiated between sovereigns. Such a reform would allow states and tribes alike to extract their …
The Plight Of "Nappy-Headed" Indians: The Role Of Tribal Sovereignty In The Systematic Discrimination Against Black Freedmen By The Federal Government And Native American Tribes, Terrion L. Williamson
The Plight Of "Nappy-Headed" Indians: The Role Of Tribal Sovereignty In The Systematic Discrimination Against Black Freedmen By The Federal Government And Native American Tribes, Terrion L. Williamson
Michigan Journal of Race and Law
This Note concerns the role the government has played in the exclusion of Black Freedmen from Native American nations through its implementation and interpretation of the doctrine of tribal sovereign immunity ("tribal sovereignty" or "tribal immunity"). Part I discusses the background of the Freedmen within the Five Civilized Tribes and provides an overview of the doctrine of tribal sovereign immunity, including its role in the controversy concerning the status of Black Indians. Part II discusses the interpretations given to the doctrine of tribal sovereign immunity by United States courts and executive agencies and the effects of those interpretations on relations …
Not Because They Are Brown, But Because Of Ea*: Why The Good Guys Lost In Rice V. Cayetano, And Why They Didn't Have To Lose, Gavin Clarkson
Not Because They Are Brown, But Because Of Ea*: Why The Good Guys Lost In Rice V. Cayetano, And Why They Didn't Have To Lose, Gavin Clarkson
Michigan Journal of Race and Law
Part II of this Article therefore reviews the history of Native Hawaiians in the broader context of the history of federal Indian law, focusing on the vacillating congressional policies regarding Indians and how those policies almost always treated Indian tribes as political entities rather than ethnic communities. Part III reviews and analyzes the procedural history of the Rice case and its resolution by the Supreme Court. Part IV concludes with the argument that constitutionally-permissible alternative methodologies exist for accomplishing the same objective of self-determination for Native Hawaiians
Who Is An Indian? Searching For An Answer To The Question At The Core Of Federal Indian Law, Margo S. Brownell
Who Is An Indian? Searching For An Answer To The Question At The Core Of Federal Indian Law, Margo S. Brownell
University of Michigan Journal of Law Reform
The definition of Indian is the measure of eligibility for a variety of benefits and programs provided to Indians under federal law. There is confusion, however, at the core of efforts to define "Indian." This confusion raises many concerns about the role that government plays in defining "Indian." This Note surveys the most common definitions of "Indian" found in federal statutes, BIA regulations, and state laws. The author argues that the racial basis of many of these laws and regulations are unconstitutional and tread on the sovereignty of Indian tribes. She evaluates efforts of the federal government to avoid these …
Protecting Native Americans: The Tribe As Parens Patriae, Cami Fraser
Protecting Native Americans: The Tribe As Parens Patriae, Cami Fraser
Michigan Journal of Race and Law
This Note argues that Tribes have parens patriae standing to protect their citizens through litigation on their behalf, even if not all of their citizens are engaged in the litigation. Part I examines the current requirements of parens patriae standing, as articulated by the Supreme Court. Part II briefly examines the nature of tribal sovereignty within American jurisprudence and concludes that parens patriae standing is a retained right of the Tribes. Part III examines the way in which the Federal District Courts have incorrectly handled tribal parens patriae standing. This section argues for a reexamination of Supreme Court doctrine when …
Ua Mau Ke Ea O Ka Aina I Ka Pono:Voting Rights And The Native Hawaiian Sovereignty Plebiscite, Troy M. Yoshino
Ua Mau Ke Ea O Ka Aina I Ka Pono:Voting Rights And The Native Hawaiian Sovereignty Plebiscite, Troy M. Yoshino
Michigan Journal of Race and Law
Using the Native Hawaiian Sovereignty Plebiscite to investigate the complex interplay between race, nationalism, and the special purpose district exception, this Note chronicles the development of relevant legal doctrines and the history of the Native Hawaiians' quest for self-government in an attempt to untangle those issues. In doing so, this Note concludes that the Native Hawaiian Sovereignty Plebiscite was an unconstitutional method of securing sovereign rights for Native Hawaiians, but that a Native Hawaiian claim to at least some form of self-government is justified. As a result, this Note searches for a method that will guarantee self-government as well as …
A Country Within A Country: Redrawing Borders On The Post-Colonial Sovereign State, Suzan Dionne Balz
A Country Within A Country: Redrawing Borders On The Post-Colonial Sovereign State, Suzan Dionne Balz
Michigan Journal of Race and Law
This Essay seeks to identify the conflict that exists between the demands for self-governance by Canada's First Nations and the interests of the Canadian state. The author elucidates this conflict by identifying two major differences between the perspectives of Canada's First Nations' demands for self-governance and the interests of the Canadian state: the privileging of the collective versus the privileging of the individual, and the two very different notions of "territory." The author concludes that the doctrine of sovereign statehood as developed out of European Nationalism stands as an obstacle to the self-determination of non-western peoples such as the First …
The Challenge Of Indigenous Self-Determination, Russel Lawrence Barsh
The Challenge Of Indigenous Self-Determination, Russel Lawrence Barsh
University of Michigan Journal of Law Reform
The Earth Summit at Rio was the first global negotiation in which indigenous peoples participated directly. They did so with the aim of advocating land rights and greater self-determination in the fields of natural-resource management and development. They justified these claims by arguing that indigenous peoples are superior stewards of the land and that strengthening indigenous peoples' traditional economies would contribute to solving global ecological and economic problems. This approach succeeded all too well. Jaded diplomats and environmental ministers seized on the hopeful possibility that indigenous economics actually might work better than discredited socialism and overextended capitalism, and they invited …
Self-Determination For Indigenous Peoples At The Dawn Of The Solar Age, Dean B. Suagee
Self-Determination For Indigenous Peoples At The Dawn Of The Solar Age, Dean B. Suagee
University of Michigan Journal of Law Reform
In addition to challenging readers to help make the principle of self-determination a reality for indigenous peoples, this Article challenges indigenous leaders, especially those in the United States, to help formulate our collective vision of a sustainable future and to provide leadership in making that vision a reality. The United Nations has designated 1993 the International Year for the World's Indigenous Peoples, and this event will provide tribal leaders with opportunities to have their voices heard. Tribal leaders in the United States should take full advantage of these opportunities and step to the forefront of the movement to hasten the …
The Hermeneutics Of Indian Law, Robert A. Williams Jr.
The Hermeneutics Of Indian Law, Robert A. Williams Jr.
Michigan Law Review
A Review of American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy by Charles F. Wilkinson
Tribal Self-Government And The Indian Reorganization Act Of 1934, Michigan Law Review
Tribal Self-Government And The Indian Reorganization Act Of 1934, Michigan Law Review
Michigan Law Review
The Indian Reorganization (Wheeler-Howard) Act of 1934 (IRA) was, by all accounts, one of the most significant single pieces of legislation directly affecting Indians ever enacted by the Congress of the United States. It has been "equalled in scope and significance only by the legislation of June 30, 1834, and the General Allotment Act of February 8, 1887." A major reversal of governmental policy and approach toward Indian affairs was effectuated by the IRA. This Comment will be concerned with the IRA as it affected the concept of tribal self-government, and primarily with those sections providing for adoption of tribal …