Law Commons^™

Federal Indian Law As Method, Matthew L. M. Fletcher

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Morton v. Mancari is well-known in Indian law circles as a foundation for the tribal self-determination era, which is generally understood to have begun in the late 1960s and early 1970s. The case involved an Act of Congress that required the federal “Indian Office” (now called the Bureau of Indian Affairs) to grant preference in employment to “Indians.” The case is typically understood as the basis for analyzing how federal statutes that apply exclusively to Indian people do not implicate the anti-discrimination principles of the United States Constitution. This understanding of the case, while correct, is too narrow.

Looted Cultural Objects, Elena Baylis

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In the United States, Europe, and elsewhere, museums are in possession of cultural objects that were unethically taken from their countries and communities of origin under the auspices of colonialism. For many years, the art world considered such holdings unexceptional. Now, a longstanding movement to decolonize museums is gaining momentum, and some museums are reconsidering their collections. Presently, whether to return such looted foreign cultural objects is typically a voluntary choice for individual museums to make, not a legal obligation. Modern treaties and statutes protecting cultural property apply only prospectively, to items stolen or illegally exported after their effective dates. …

When John Locke Meets Lao Tzu: The Relationship Between Intellectual Property, Biodiversity And Indigenous Knowledge And The Implications For Food Security, Paolo Davide Farah, Marek Prityi

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This article aims to examine the relationship between the concepts of intellectual property, biodiversity, and indigenous knowledge from the perspective of food security and farmers’ rights. Even though these concepts are interdependent and interrelated, they are in a state of conflict due to their inherently enshrined differences. Intellectual property is based on the need of protecting individual property rights in the context of creations of their minds. On the other hand, the concepts of biodiversity, indigenous knowledge and farmers’ rights accentuate the aspects of equity and community. This article aims to analyse and critically assess the respective legal framework and …

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

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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 …

Due Process And Equal Protection In Michigan Anishinaabe Courts, Matthew Fletcher

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In 1968, largely because the United States Constitution does not apply to tribal government activity, Congress enacted the Indian Civil Rights Act–a federal law that requires tribal governments to guarantee due process and equal protection to persons under tribal jurisdiction. In 1978, the Supreme Court held that persons seeking to enforce those federal rights may do so in tribal forums only; federal and state courts are unavailable. Moreover, the Court held that tribes may choose to interpret the meanings of “due process” and “equal protection” in line with tribal laws, including customary laws. Since the advent of the self-determination era …

Restoring Indian Reservation Status: An Empirical Analysis, Michael K. Velchik, Jeffery Zhang

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In McGirt v. Oklahoma, the Supreme Court held that the eastern half of Oklahoma was Indian country. This bombshell decision was contrary to settled expectations and government practices spanning 111 years. It also was representative of an increasing trend of federal courts recognizing Indian sovereignty over large and economically significant areas of the country, even where Indians have not asserted these claims in many years and where Indians form a small minority of the inhabitants.

Although McGirt and similar cases fundamentally turn on questions of statutory and treaty interpretation, they are often couched in consequence-based arguments about the good …

Ma'ii And Nanaboozhoo Fistfight In Heaven, Tamera Begay, Matthew Fletcher

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In the form of a cute, cuddly, and innocent waabooz, Nanaboozhoo munched on the chewy, bitter Tłohdá’ákáłiitsoh he found everywhere in this⁣ land, far from his own. Although, it was a bit dry. In this land, Dinétah,⁣ Nanaboozhoo thought he could see forever. There were few trees. The sky⁣ was bright blue and limitless. The air smelled like a kind of dirt he had never⁣ experienced. And, boy howdy, was it dry. He couldn’t smell water for the⁣ life of him. But there was water, to be sure, or else there wouldn’t be this⁣ bush.

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

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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 …

Preemption, Commandeering, And The Indian Child Welfare Act, Matthew L.M. Fletcher, Randall F. Khalil

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This year (2022), the Supreme Court agreed to review wide-ranging constitutional challenges to the Indian Child Welfare Act (ICWA) brought by the State of Texas and three non-Indian foster families in the October 2022 Term. The Fifth Circuit, sitting en banc, held that certain provisions of ICWA violated the anti-commandeering principle implied in the Tenth Amendment and the equal protection component of the Fifth Amendment’s Due Process Clause.

We argue that the anti-commandeering challenges against ICWA are unfounded because all provisions of ICWA provide a set of legal standards to be applied in states which validly and expressly preempt state …

Professionalism In Tribal Jurisdictions, Matthew L.M. Fletcher

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American Indian law is an important area of law. There are 12 federally recognized Indian tribes in the state of Michigan.1 Indian tribes throughout the United States do business in Michigan. Indian tribal governments and corporations employ hundreds of thousands of non-Indians and received billions in federal pandemic relief. Indian gaming generated nearly $40 billion in revenues nationally last year. Still, many lawyers ignore the field or claim ignorance about the basic precepts of federal Indian law.

This article will canvass several themes of professionalism in tribal practice, drawing from this author’s tribal law experience over the last few decades. …

A Familiar Crossroads: Mcgirt V. Oklahoma And The Future Of The Federal Indian Law Canon, Dylan R. Hedden-Nicely

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Federal Indian law forms part of the bedrock of American jurisprudence. Indeed, critical parts of the pre-civil war constitutional canon were defined in Federal Indian law cases that simultaneously provided legal justification for American westward expansion onto unceded Indian lands. As a result, Federal Indian law makes up an inextricable part of American rule of law. Despite its importance, Federal Indian law follows a long and circuitous road that requires "wander[ing] the maze of Indian statutes and case law tracing back [over] 100 years." That road has long oscillated between two poles, with the Supreme Court sometimes applying foundation principles …

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

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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 …

Fraying The Knot: Marital Property, Probate, And Practical Problems With Tribal Bans, Suzianne D. Painter-Thorne

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In the summer of 2015, marriage equality advocates celebrated the Supreme Court’s decision in Obergefell v. Hodges, which struck down state prohibitions on same-sex marriage.The Court found that “[t]he right of same-sex couples to marry . . . is part of the liberty promised by the Fourteenth Amendment.” Two years earlier, the Court had struck down parts of the federal Defense of Marriage Act (DOMA), finding that the federal government could not discriminate against same-sex married partners. With these two decisions, the Court ensured that the marriages of same-sex couples would be recognized by the federal government and in …

The Contemporary Methodology For Quantifying Reserved Instream Flow Water Rights To Support Aquatic Habitat, Dylan R. Hedden-Nicely

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Since time immemorial, indigenous people have relied on the streams of their territory for food, fiber, transportation, recreation, cultural, and spiritual needs. Accordingly, tribal people-particularly those in the region now called the Northwestern United States-placed singular emphasis on preserving their traditional subsistence culture when negotiating with the United States during the reservation era. Although rarely expressed in these treaties, the tribes are nonetheless entitled to water rights sufficient to fulfill these traditional subsistence treaty rights. Of the suite of water rights to maintain traditional uses of water, likely the most commonly claimed is for water to maintain fish habitat. A …

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

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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 …

The Historical Evolution Of The Methodology For Quantifying Federal Reserved Instream Water Rights For American Indian Tribes, Dylan R. Hedden-Nicely

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From the earliest days of their relationship with the United States, the tribes from the region today referred to as the Northwestern United States have been steadfast in their effort to protect the land, waters, plants, and animals of their traditional homelands. That effort is not coincidental; North America's indigenous people have a singular relationship to the environment they have been a part of for millennia. In particular, they have relied on the streams of their territory for food, fiber, transportation, recreation, cultural, and spiritual sustenance. As a result, through litigation, restoration, and conservation management, tribes have focused on maintaining …

Indigenous Rights And Climate Change: The Influence Of Climate Change On The Quantification Of Reserved Instream Water Rights For American Indian Tribes, Dylan R. Hedden-Nicely

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The people indigenous to the Western portion of the lands now referred to as North America have relied on aquatic species for physical, cultural, and spiritual sustenance for millennia. Such indigenous peoples, referred to in the American legal system as Indian tribes, are entitled to water rights for fish habitat pursuant to the Winters Doctrine, which holds that the federal government impliedly reserved water rights for tribes when reservations were created. Recently, the methodology for quantifying these rights has been the Instream Flow Incremental Methodology (IFIM) and/or one of its major components, the Physical Habitat Simulation Model (PHABSIM). These models …

Cultural Linguistics And Treaty Language: A Modernized Approach To Interpreting Treaty Language To Capture The Tribe's Understanding, Dylan R. Hedden-Nicely

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Language is a reflection of a thought world. A worldview that has been shaped by place to describe one's identity in space and time does not equate to species relatedness as a default to know one another. In the legal system of the United States, there is acknowledgement of treaties in colonized lands that there are rights granted from the tribes and not to them, and those rights are land based. Yet, the Indigenous voice is dead before arrival, before it enters the room of science, justice, academe, or otherwise. The exclusion of Indigenous peoples at the table of knowledge …

Cultural Linguistics And Treaty Language: A Modernized Approach To Interpreting Treaty Language To Capture The Tribe's Understanding, Barbara Cosens

Articles

Language is a reflection of a thought world. A worldview that has been shaped by place to describe one's identity in space and time does not equate to species relatedness as a default to know one another. In the legal system of the United States, there is acknowledgement of treaties in colonized lands that there are rights granted from the tribes and not to them, and those rights are land-based. Yet, the Indigenous voice is dead before arrival, before it enters the room of science, justice, academe, or otherwise. The exclusion of Indigenous peoples at the table of knowledge and …

The Indian Child Welfare Act: A Brief Overview To Contextualize Current Controversies., Frank E. E. Vandervort

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Congress passed and the president signed the Indian Child Welfare Act (ICWA) into federal law in 1978. Because the Constitution grants to Congress the authority to make law regarding Indian tribes, ICWA’s provisions are mandatory, unlike other federal child welfare legislation such as the Child Abuse Prevention and Treatment Act, which are voluntary. State authorities handling any case involving an “Indian child” must comply with ICWA.

What We Don't See When We See Copyright As Property, Jessica Litman

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For all of the rhetoric about the central place of authors in the copyright scheme, our copyright laws in fact give them little power and less money. Intermediaries own the copyrights, and are able to structure licenses so as to maximise their own revenue while shrinking their pay-outs to authors. Copyright scholars have tended to treat this point superficially, because – as lawyers – we take for granted that copyrights are property; property rights are freely alienable; and the grantee of a property right stands in the shoes of the original holder. I compare the 1710 Statute of Anne, which …

Tenth Anniversary Of The University Of Idaho's Native Law Program, Dylan R. Hedden-Nicely

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No abstract provided.

Welcome From The Chair Of The Indian Law Section, Dylan R. Hedden-Nicely

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No abstract provided.

Indigenous Rights To Water & Environmental Protection, Robert T. Anderson

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This article examines the rights of Indian nations in the United States to adequate water supplies and environmental protection for their land and associated resources. Part I of this article provides a brief background on the history of federal-tribal relations and the source and scope of federal obligations to protect tribal resources. Part II reviews the source and nature of the federal government’s moral and legal obligations to Indian tribes, which are generally referred to as the trust responsibility. Indian reserved water rights and the difficulty tribes experience in protecting habitat needed for healthy treaty resources is discussed in Part …

Indigenous Water Justice, Barbara Cosens

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Indigenous Peoples are struggling for water justice across the globe. These struggles stem from centuries-long, ongoing colonial legacies and hold profound significance for Indigenous Peoples’ socioeconomic development, cultural identity, and political autonomy and external relations within nation-states. Ultimately, Indigenous Peoples’ right to self- determination is implicated. Growing out of a symposium hosted by the University of Colorado Law School and the Native American Rights Fund in June 2016, this Article expounds the concept of “indigenous water justice” and advocates for its realization in three major trans- boundary river basins: the Colorado (U.S./Mexico), Columbia (Canada/U.S.), and Murray-Darling (Australia). The Article begins …

Foreword: A ‘Coyote Warrior’ And The ‘Great Paradoxes,’ The Scholarship Of Professor Raymond Cross, Monte Mills

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This Foreword to the Public Land and Resources Law Review special issue republishing and celebrating the scholarship of Professor Raymond Cross provides a context and framework for understanding and appreciating the issue's articles. The Foreword reviews Professor Cross' legacy of work as a tribal attorney on behalf of the Three Affiliated Tribes (Mandan, Hidatsa, and Arikara) of the Fort Berthold Reservation and discusses the important contributions his scholarly work continue to make to the field of Federal Indian Law. As noted at the conclusion of the Foreword, "[i]t is a true honor to introduce and present some of his important …

Beyond A Zero-Sum Federal Trust Responsibility: Lessons From Federal Indian Energy Policy, Monte Mills

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The federal government’s trust relationship with federally recognized Indian tribes is a product of the last two centuries of Federal Indian Law and federal-tribal relations. For approximately the last 50 years, the federal government has sought to promote tribal self-determination as a means to carry out its trust responsibilities to Indian tribes; but the shadows of prior federal policies, based largely on notions of tribal incompetence and federal paternalism, remain. Perhaps no other policy arena better demonstrates the history, evolution, and promise for reform of the federal trust relationship than Federal Indian energy policy, or the range of federal statutes …

College Of Law Committed To Native Law Program, Mark Adams

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No abstract provided.

New Approaches To Energy Development In Indian Country: The Trust Relationship And Tribal Self-Determination At (Yet Another) Crossroads, Monte Mills

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Energy development in Indian country exists at the crossroads of tribal self-determination and the federal government's trust responsibility. This article reviews the foundations of this crossroads, describes recent developments, and analyzes pending proposals that may enhance both tribal sovereignty and energy development in Indian country.

What Should Tribes Expect From Federal Regulations? The Bureau Of Land Management's Fracking Rule And The Problems With Treating Indian And Federal Lands Identically, Monte Mills

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On March 26, 2015, the Bureau of Land management (BLM) published its Final Rule regarding Hydraulic Fracturing on Federal and Indian Lands (Final Rule). Work on the Rule had begun nearly four and a half years earlier as a way to update the agency’s outdated regulatory scheme to account for new fracking technology and growing public concern over the practice and potential safety concerns related to fracking.

The Final Rule amassed a number of procedural and substantive requirements for fracking operations and proposed to apply these standards uniformly to both public lands and lands held in trust by the Federal …