Law Commons^™

Case Law On American Indians: October 2022 - August 2023, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Case Law On American Indians, Thomas P. Schlosser

American Indian Law Journal

An update on American Indian case law from September 2021-October 2022.

The Rule Against Hearsay, Indigenous Claims And Story-Telling As Testimony In Canadian Courts, Zia Akhtar

American Indian Law Journal

No abstract provided.

Case Law On American Indians, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Extraction Of Personal Data: A New Form Of Colonialism Or Continuation Of A Colonial Practice? Adult Native American Adoptees Resist Assimilation And Rebuild Erased Identities, Leonard Mukosi

American Indian Law Journal

A new form of colonialism, distinctive of the 21st century is reported to be taking shape: data colonialism. Data colonialism interprets the contemporary capture and processing of personal data by governments or data corporations as an evolution of historical colonialism. Scholars who advance this theory do not juxtapose the contents, form, let alone the physical violence of historical colonialism with the contemporary practices of appropriation of personal data. Instead, they only refer to historic colonialism in the context of its function within the development of economies on a global scale. The main argument made in this paper is that; to …

Crossing The Dark And Fearful River: Monsanto, Pcbs, And Emerging Tort Theories, Keith Dornan, Jamie Hearn

American Indian Law Journal

guide the discussion.

Tribal, state, and city authorities are currently pursuing or have settled product liability, public nuisance, and other common law and statutory tort claims brought against Monsanto[1] for PCB contamination.^[2] “Sovereign-led” litigation melds traditional plaintiff common law tort litigation with sovereign-led environmental suits and is an emerging trend in environmental law.^[3] Tort claims against the manufacturers of contaminants ubiquitous in the environment give sovereigns a new angle for pursuing damages separate from a traditional statutory environmental claim under federal or state regulatory schemes, such as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

The Importance Of Abolition Of The Carceral State For Native Survivors, Christina M. Schnalzer

American Indian Law Journal

No abstract provided.

Analyzing The Implications Of The Supreme Court's Application Of The Canons Of Construction In Recent Federal Indian Law Cases, Meredith Harris J.D.

American Indian Law Journal

Federal Indian law in the United States has historically relied on application of the Indian Canons of Construction (“Canons”). The courts have relied on these principles since 1832. However, their application has not been consistent. Indeed, the Canons are discretionary which has led to judicial avoidance. Yet, recent Supreme Court opinions demonstrate a resurgence of the Canons and a trend towards a textualist approach, both of which involve greater deference to tribal understandings. Ultimately, the opinions in United States v. Washington, Washington State Dept. of Licensing v. Cougar Den, Herrera v. Wyoming, and McGirt v. Oklahoma, …

Unqualified? Investing In Qualified Opportunity Zones On Reservations, Ben Gibson

American Indian Law Journal

This paper evaluates the impact of qualified opportunity zones, created by the Tax Cuts and Jobs Act of 2017, on Indian reservations. The former Chairman of the Council of Economic Advisers hailed the qualified opportunity zone program as the part of the TCJA of which he was most proud. But the program has not benefited all intended beneficiaries equally. The author of this paper collects data about the presence of qualified opportunity zones on Indian reservations. Compared to other areas designated as qualified opportunity zones, Indian Reservations were disproportionately underinvested in. The author evaluates the comparative lack of qualified opportunity …

Rebalancing Bracker Forty Years Later, William Mcclure, Thomas E. Mcclure

American Indian Law Journal

This Article examines forty years of federal and state courts’ application of the Bracker balancing test, which considers whether a state tax is preempted when assessed against a non-Indian on tribal land. First, this Article chronicles the history and progression of the Bracker balancing test in the Supreme Court. Second, this Article cross-tabulates judicial findings of no preemption with key characteristics of all lower court state taxation decisions that cite Bracker. Third, this Article reports the results of regression analyses that reveal lower courts were less likely to find preemption of cigarette taxes, more likely to find state fuel …

Case Law On American Indians, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Beyond A Sliver Of A Full Moon: Acknowledging And Abolishing White Bias To Restore Safety & Sovereignty To Indian Country, Mary T. Hannon

American Indian Law Journal

Violence against indigenous women in the United States is unprecedented. This violence is aggravated by the fact that indigenous women are often unable to obtain justice for the crimes against them due to a complex jurisdictional scheme that ignores the inherent authority of the First Nations. This scheme is the product of centuries of white bias – perpetuated by contemporary legislators and the judiciary – that treats the First Nations and tribal courts as inferior. In the context of Congress’s recent attempt to expand protection for indigenous women in the Violence Against Women Reauthorization Act of 2019, this Note will …

Rehabilitative Justice: The Effectiveness Of Healing To Wellness, Opioid Intervention, And Drug Courts, Majidah M. Cochran, Christine L. Kettel

American Indian Law Journal

No abstract provided.

Indian Child Welfare Act Annual Case Law Update And Commentary, Kathryn Fort, Adrian T. Smith

American Indian Law Journal

Annually there is an average of 200 appellate cases dealing with the Indian Child Welfare Act (ICWA) —though this includes published and unpublished opinions.[1] Since our first annual review of the case law in 2017, the numbers remain stable. There are approximately thirty reported state appellate court cases involving ICWA each year. This annual review is the only systematic look at the ICWA cases on appeal, including an analysis of who is appealing, what the primary issues are on appeal, and what topical trends are.

This article provides a comprehensive catalogue of published ICWA cases from across all fifty …

Out With The New, In With The Old: Re-Implementing Traditional Forms Of Justice In Indian Country, Nicholas R. Sanchez

American Indian Law Journal

No abstract provided.

Mapping A Way Through Disaster And Emergency Issues Involving Indian Country And The Importance Of Legal Preparedness, Brian T. Candelaria

American Indian Law Journal

No abstract provided.

Case Law On American Indians August 2018-2019, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Lessons From Batson In A Comparative Criminal Context: How Implicit Racial Biases Remain Unaddressed In Canadian Jury Section, Brittney Adams

American Indian Law Journal

This Article highlights how Batson challenges may be instructive for addressing racial biases in jury selection in Canada and draws on the murder of Colten Boushie as an illustration of how the current system has failed to hold white defendants accountable in criminal cases involving Aboriginal victims. While far from perfect, peremptory Batson challenges in the United States serve as a nod to the ongoing issue of racial bias in jury selection in the United States. Canadian jury selection contains no similar challenges, which has too often resulted in all-white or mostly-white juries failing to hold white defendants accountable for …

A Change In South Dakota’S Child Sexual Abuse Statute Of Limitations: An Equal Protection Violations?, Peyton Healy

American Indian Law Journal

No abstract provided.

The Colourful Truth: The Reality Of Indigenous Overrepresentation In Juvenile Detention In Australia And The United States, Rachel Thampapillai

American Indian Law Journal

No abstract provided.

A Silent Epidemic: Revisiting The 2013 Reauthorization Of The Violence Against Women Act To Better Protect American Indian Native Women, Rory Flay

American Indian Law Journal

No abstract provided.

Protecting Victims Of Domestic Assault: Upholding The Use Of Uncounseled Tribal Court Domestic Assault Convictions To Establish Federal Habitual Domestic Assault Charges, Joanna Adu

American Indian Law Journal

No abstract provided.