Law Commons^™

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.

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

Washington Journal of Social & Environmental Justice

No abstract provided.

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 …

(Some) Land Back...Sort Of: The Transfer Of Federal Public Lands To Indian Tribes Since 1970, Audrey Glendenning, Martin Nie, Monte Mills

Articles

Federal public lands in the United States were carved from the territories of Native Nations and, in nearly every instance, required that the United States extinguish pre-existing aboriginal title. Following acquisition of these lands, the federal government pursued various strategies for them, including disposal to states and private parties, managing lands to allow for multiple uses, and conservation or protection. After over a century of such varied approaches, the modern public landscape is a complex milieu of public and private interests, laws and policies, and patchwork ownership patterns. This complexity depends on—and begins with—the history of Indigenous dispossession but subsequent …

In The Room Where It Happens: How Federal Appropriations Law Can Enforce Tribal Consultation Policies And Protect Native Subsistence Rights In Alaska, Kieran O'Neil

Washington Law Review

Federal-tribal consultation is one of the only mechanisms available to American Indian and Alaska Native communities to provide input on federal management decisions impacting their subsistence lands and resources. While the policies of many federal agencies “require” consultation, agencies routinely approach consultation as a procedural checklist rather than a two-way dialogue for receiving, considering, and incorporating tribal needs and concerns. Substantive failure to consult is particularly harmful for Alaska Native communities that rely heavily on subsistence resources yet lack treaties to enforce hunting and fishing rights. The Alaska National Interest Lands Conservation Act (ANILCA) contains a “rural priority” provision that …

Toward Mutual Recognition: An Investigation Of Oral Tradition Evidence In The United States And Canada, Kalae Trask

Washington Journal of Social & Environmental Justice

United States (“U.S.”) courts have long failed to recognize the value of oral traditional evidence (“OTE”) in the law. Yet, for Indigenous peoples, OTE forms the basis of many of their claims to place, property, and political power. In Canada, courts must examine Indigenous OTE on “equal footing” with other forms of admissible evidence. While legal scholars have suggested applying Canadian precedent to U.S. law regarding OTE, scholarship has generally failed to critically examine the underlying ethos of settler courts as a barrier to OTE admission and usefulness. This essay uses the work of political philosopher, James Tully, …

Critical Concerns In Indian Country: Arizona V. Navajo Nation, Monte Mills

Presentations

No abstract provided.

Combating Climate Change And Increasing Tribal Co-Management, Monte Mills

Presentations

This concurrent session provided an overview of how Tribes are working to combat the ever present threat of climate change and the move toward increasing Tribal-co management of lands and waters throughout the country. The session included a discussion of the Department of the Interior’s work to implement Secretarial Order 3403 on Fulfilling the Trust Responsibility to Indian Tribes in the Stewardship of Federal Lands and Waters.

Brief Of Tribal Nations And Indian Organizations As Amici Curiae In Support Of The Navajo Nation, U.S. Supreme Court Docket No. 21-1484, Monte Mills, Heather D. Whiteman Runs Him, Dylan R. Hedden-Nicely, John E. Echohawk, Steven C. Moore, David L. Gover, Joe M. Tenorio, Ada Montague Stepleton, Morgan E. Saunders, Wesley James Furlong, Sydney Tarzwell

Court Briefs

SUMMARY OF ARGUMENT: The Winters Doctrine recognizes and gives effect to the promises made by the United States in treaties, congressionally ratified agreements, and executive orders that Tribal Nations would retain permanent and viable homelands. These promises, made in exchange for the Tribal Nations’ cession of billions of acres of land, paved the way for the non-Indian settlement of the West. Although every tribal homeland is unique, invariably, each requires water to be livable. Applying the canons of construction this Court has developed as part of its federal Indian law jurisprudence, as well as the history and circumstances surrounding the …

Examining Comity And The Exhaustion Doctrine In Tribal Court Civil Jurisdiction: The Cherokee Nation’S Opioid Litigation, Joëlle Klein

Washington Law Review

The opioid epidemic has devastated communities throughout the United States over the last two decades. Native American and Alaska Native tribes faced disproportionate impacts and suffered the long-lasting consequences that opioid addiction causes families and communities. In response, states and municipalities across the United States sued the distributors and pharmacies responsible for illegally diverting opioids. In April of 2017, the Attorney General for the Cherokee Nation, Todd Hembree, initiated a civil suit against opioid pharmaceutical distributors and retailers: CVS, Walgreens, Wal-Mart (pharmacies), and McKesson, Cardinal Health, and AmerisourceBergen (distributors). Although other tribes in the United States also brought claims against …

Why Our Stories Matter: A Perspective On The Restatement From The State Bench, Raquel Montoya-Lewis

Washington Law Review

No abstract provided.

Bringing Congress And Indians Back Into Federal Indian Law: The Restatement Of The Law Of American Indians, Kirsten Matoy Carlson

Washington Law Review

Congress and Native Nations have renegotiated the federal-tribal relationship in the past fifty years. The courts, however, have failed to keep up with Congress and recognize this modern federal-tribal relationship. As a result, scholars, judges, and practitioners often characterize federal Indian law as incoherent and inconsistent. This Article argues that the Restatement of the Law of American Indians retells federal Indian law to close the gap between statutory and decisional law. It realigns federal Indian law with the modern federal-tribal relationship negotiated between Congress and tribal governments. Consistent with almost a half-century of congressional law and policy, the Restatement clarifies …

Reflections On The Restatement Of The Law Of American Indians, Matthew L.M. Fletcher

Washington Law Review

No abstract provided.

Protection For Indian Sacred Sites, William A. Fletcher

Washington Law Review

No abstract provided.

Tribal Sovereignty And Economic Efficiency Versus The Courts, Robert J. Miller

Washington Law Review

American Indian reservations are the poorest parts of the United States, and a higher percentage of Indian families across the country live below the poverty line than any other ethnic or racial sector. Indian nations and Indian peoples also suffer from the highest unemployment rates in the country and have the highest substandard housing rates. The vast majority of the over three hundred Indian reservations and the Alaska Native villages do not have functioning economies. This lack of economic activity starves tribal governments of the tax revenues that governments need to function. In response, Indian nations create and operate business …

Off-Reservation Treaty Hunting Rights, The Restatement, And The Stevens Treaties, Ann E. Tweedy

Washington Law Review

The underdevelopment of the law of off-reservation treaty hunting and gathering poses challenges for treatises like the groundbreaking Restatement of the Law of American Indians (“Restatement”). With particular attention to sections 83 and 6 of the Restatement, this Article explores those challenges and offers some solutions for dealing with them in subsequent editions of the Restatement. Specifically, this Article explores the potential usefulness of historical law in interpreting treaties, the need to tie treaty interpretation to the language of the treaty when an explicit right is at issue, the proper application of the reserved rights doctrine and the Indian canons, …

Ninth Circuit Muddies The Waters Of Tribal Sovereign Immunity And The Clean Water Act In Deschutes River Alliance V. Portland Ge, Danielle Clifford

Washington Journal of Social & Environmental Justice

Throughout 2011 and 2012, members of the Deschutes River community who fish in the Lower Deschutes River in Oregon noticed a slew of significant changes to their natural environment. The Deschutes River Alliance attributed the changes to the operation of the Pelton Round Butte Hydraulic Project, which is co-owned and operated by Portland General Electric and The Confederated Tribes of the Warm Springs. In July 2016, DRA filed a Clean Water Act lawsuit against them. To rule on the alleged CWA violations, the DRA must first get past the tribal sovereign immunity hurdle. It is long-recognized that American Indian Nations …

Bridges To A New Era Part 2: A Report On The Past, Present, And Potential Future Of Tribal Co-Management On Federal Lands In Alaska, Monte Mills, Martin Nie

Articles

Nowhere else in the United States are tribal connections and reliance on federal public lands as deep and geographically broad-based as in what is now Alaska. The number of Tribes—229 federally recognized tribes—and the scope of the public land resource—nearly 223 million acres—are simply unparalleled. Across that massive landscape, federal public lands and the subsistence uses they provide remain, as they have been since time immemorial, “essential to Native physical, economic, traditional, and cultural existence.”^[1] Alas, the institutions, systems, and processes responsible for managing those lands, protecting those uses, and honoring those connections are failing Alaska Native Tribes.

The …

Petition For Writ Of Certiorari

Jamestown S'Klallam Tribe and Port Gamble S'Klallam Tribe v. Lummi Nation, Docket No. 21-913 (142 S.Ct. 1123 (2022))

No abstract provided.

Let Indians Decide: How Restricting Border Passage By Blood Quantum Infringes On Tribal Sovereignty, Rebekah Ross

Washington Law Review

American immigration laws have been explicitly racial throughout most of the country’s history. For decades, only White foreign nationals could become naturalized citizens. All racial criteria have since vanished from the Immigration and Nationality Act (INA)—all but one. Section 289 of the INA allows “American Indians born in Canada” to freely cross into the United States if they possess at least 50% blood “of the American Indian race.” Such American Indians cannot be prohibited from entering the United States and can obtain lawful permanent residence status—if they meet the blood quantum requirement. Such racialized immigration controls arbitrarily restrict cross-border Indigenous …

Kū Kia‘I Mauna: Protecting Indigenous Religious Rights, Joshua Rosenberg

Washington Law Review

Courts historically side with private interests at the expense of Indigenous religious rights. Continuing this trend, the Hawai‘i State Supreme Court allowed the Thirty- Meter-Telescope to be built atop Maunakea, a mountain sacred to Native Hawaiians. This decision led to a mass protest that was organized by Native Hawaiian rights advocates and community members. However, notwithstanding the mountain’s religious and cultural significance, Indigenous plaintiffs could not prevent construction of the telescope on Maunakea.

Unlike most First Amendment rights, religious Free Exercise Clause claims are not generally subject to strict constitutional scrutiny. Congress has mandated the application of strict scrutiny to …

Bridges To A New Era: A Report On The Past, Present, And Potential Future Of Tribal Co-Management On Federal Public Lands, Monte Mills, Martin Nie

Articles

Deep ancestral and traditional connections tie many Native Nations to the federal government’s public lands. The removal of these lands from indigenous control, their acquisition by the federal government, and the federal government’s approach to their management are largely premised upon the erasure or marginalization of those connections. Both physically and legally, Indian tribes have been removed from the landscapes they occupied since time immemorial. Rather than centering, honoring, and using those connections, the current discussion of tribal co-management of federal public lands is mostly bereft of this full legal and historical context.

Compounding these limitations is the considerable discretion …

Ktunaxa Nation V. British Columbia: A Historical And Critical Analysis Of Canadian Aboriginal Law, Jennifer Mendoza

Washington International Law Journal

Aboriginal law is a developing and emerging area of the law in Canada. In fact, Aboriginal rights were not constitutionally protected until the ratification of the Canadian Constitution in 1982. What followed was a series of precedent-setting cases that clarified what “rights” meant under Section 35 of the Constitution, how Aboriginal title and rights could be established, and what duty the federal government had to the First Nations when trying to infringe on those rights. In 2017, the Canadian Supreme Court heard Ktunaxa Nation v. British Columbia, which was the first case to interpret Aboriginal rights under Section 2(a) religious …

Beyond The Belloni Decision: Sohappy V. Smith And The Modern Era Of Tribal Treaty Rights, Monte Mills

Articles

Indian tribes and their members are leading a revived political, legal, and social movement to protect the nation’s natural resources. In doing so, tribes and their allies employ many effective strategies but core to the movement are the historic promises made to tribes by the United States through treaties. Tribes are asserting treaty-protected rights, which the United States Constitution upholds as the supreme law of the land, to defend the resources on which they and their ancestors have relied for generations. Those claims have resulted in significant legal victories, igniting a broader movement in favor of tribal sovereignty and securing …

Conceptualizing Indigenous Historical Justice Toward A Mutual Recognition With State In Taiwan, Awi Mona

Washington International Law Journal

Transitional justice has received considerable attention in recent years in Taiwan. Despite all this attention, transitional justice is an issue that remains incomplete without addressing justice for indigenous peoples. This paper aims to focus on the essential characteristics of indigenous justice against the successive alien regimes. Though the fact that the national apology to indigenous peoples may have broken new ground in the government’s relationship with indigenous peoples, the common understanding of transitional justice has caused significant bitterness and frustration for indigenous peoples. Until the core significance of indigenous justice is essentially resolved, the existing uncertainty about reconciliation with indigenous …

Savage Inequalities, Bethany R. Berger

Washington Law Review

Equality arguments are used today to attack policies furthering Native rights on many fronts, from tribal jurisdiction over non-Indian abusers to efforts to protect salmon populations in the Pacific Northwest. These attacks have gained strength from a modern movement challenging many claims by disadvantaged groups as unfair special rights. In American Indian law and policy, however, such attacks have a long history, dating almost to the founding of the United States. Tribal removal, confinement on reservations, involuntary allotment and boarding schools, tribal termination—all were justified, in part, as necessary to achieve individual Indian equality. The results of these policies, justified …

A Comparative Analysis: Legal And Historical Analysis Of Protecting Indigenous Cultural Rights Involving Land Disputes In Japan, New Zealand, And Hawai'i, Zachary Browning

Washington International Law Journal

This article explores how courts in developed market economies address the tension between recognizing the rights of indigenous groups and addressing questions of land development that supposedly benefit the majority populations. Using a comparative approach, the article identifies three jurisdictions in the Pacific Rim with indigenous populations: (1) the State of Hawai‘i in the United States, (2) Japan, and (3) New Zealand and analyzes how land use courts and administrative bodies have addressed the thorny question pursuing development while fulfilling their obligations to indigenous populations. While the State of Hawai‘i has explicit state constitutional protections, Japan and New Zealand each …

Remaining Silent In Indian Country: Self-Incrimination And Grants Of Immunity For Tribal Court Defendants, Philipp C. Kunze

Washington Law Review

A defendant in state and federal courts is entitled to a constitutional protection against self-incrimination. The Fifth Amendment establishes this privilege, which can only be overcome through a voluntary waiver or by the granting of an appropriate level of immunity. Those grants of immunity were made mutually binding on the state and federal governments in Kastigar v. United States and Murphy v. Waterfront Commission of New York Harbor. However, in Talton v. Mayes, the U.S. Supreme Court held that the Fifth and Fourteenth Amendments do not limit the conduct of the more than 560 federally recognized Indian tribes …

Rent-A-Tribe: Tribal Immunity To Shield Patents From Administrative Review, Seth W.R. Brickey

Washington Law Review

In 2017, Allergan Pharmaceuticals entered into an agreement with the Saint Regis Mohawk Tribe (SRMT). Allergan agreed to assign several patents to SRMT and to pay an initial sum of $13.75 million and annual royalties of approximately $15 million. SRMT, in exchange, licensed the rights to use the patents back to Allergan and agreed not to waive its tribal immunity in any administrative proceeding challenging the patents. Two outcomes were expected as a result of this Allergan-Mohawk agreement. First, Allergan would retain the rights to manufacture and market a highly profitable drug while insulating the underlying patents from an unforgiving …

Motion For Leave To File Amicus Curiae Brief And Brief Of United Catcher Boats As Amicus Curiae In Support Of Petitioner

Makah Indian Tribe v. Quileute Indian Tribe and Quinault Indian Nation, Docket No. 17-1592 (139 S.Ct. 106 (2018))

No abstract provided.