Law Commons^™

􏰀Enough􏰁S Enough􏰂: Protest Law And The Tradition Of Chilling Indigenous Free Speech, Alix H. Bruce

American Indian Law Journal

Indigenous peoples in the United States were not granted the full scope of their rights as citizens under the Constitution until the enactment of the Indian Citizenship Act of 1924. Before that—and after—several state and federal campaigns worked to stifle the civil rights of Indigenous peoples. Many of those unjust and unconstitutional policies were upheld by the Supreme Court. In the current era, the anti-pipeline protests on the edge of the Standing Rock Sioux Reservation in North Dakota sparked a new recognition of Indigenous resistance under the First Amendment—and vicious state and federal backlash against Indigenous free speech via the …

Waived: The Detrimental Implications Of U.S. Immigration And Border Security Measures On Southern Border Tribes – An Analysis Of The Impact Of President Trump’S Border Wall On The Tohono O’Odham Nation, Keegan C. Tasker

American Indian Law Journal

No abstract provided.

The Flourishing Race: How The Success Of American Indian Artist-Entrepreneurs Underscores The Need For Enhanced Legal Protections For Native Intellectual Property, Jessica Roberts

American Indian Law Journal

No abstract provided.

Aboriginal Rights And Constitutional Conflict: The Marshall Court, State And Federal Sovereignty, And Native American Rights Under The 1789 Constitution, Guy Charlton

American Indian Law Journal

No abstract provided.

Nothing Is Over: Ftca Claims For Toxic Torts On Native Lands, Jessica Ditmore

American Indian Law Journal

In 1976, Congress passed the Resource Conservation and Recovery Act (“RCRA”) to curtail the growing problem of disposing of hazardous waste and toxic substances generally. Decades prior, Congress established the Federal Tort Claims Act (“FTCA”) to hold the federal Government liable for tortious conduct the same way a private citizen would be. The federal government assumed the responsibility to ensure the wellbeing of Native Nations (“NN”). This is commonly referred to the “Trust Doctrine.” This duty stems from the settlement of Native American lands, and a recognition of the treaties entered into by the United States with a “moral [obligation] …

Green Means Go: Tribes Rush To Regulate Cannabis In Indian Country, Julie Kim, Jessica Roberts

American Indian Law Journal

During the Obama administration, the United States Department of Justice (DOJ) issued a series of memos stating that the federal government would not interfere with state laws legalizing cannabis. The United States Attorney General later expressly extended this policy to Indian Country. As a result, tribes began debating potential advantages and disadvantages of participating in the cannabis market. Then, in January 2018, the DOJ rescinded the memos and publicly recommitted itself to prosecuting the possession, cultivation, and distribution of marijuana. Consequently, tribes should approach “The Green Rush” as an exercise of their sovereignty; when a tribe decides to legalize or …

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

American Indian Law Journal

No abstract provided.

Fighting On Behalf Of The Salish Sea, Cloie M. Chapman

American Indian Law Journal

Despite the wealth of data that suggests climate change will disrupt our ecosystems, key political actors have declined to take action to mitigate the anticipated effects. Further, we have seen deeper investment into the fossil fuel industry, an industry that has been a substantial contributor to climate change. Community-led movements have proven more successful in engaging with these issues on the ground. Creative legal strategies could aid in this movement and allow for strengthened enforcement of rights that are closely dependent on the health of the environment.

The Salish Sea is a body of water that reaches from Western Canada …

Preview—Atlantic Richfield Company V. Christian: The Intersection Of Superfund And State-Law Restoration Claims, Emily M. Mcculloch

Public Land & Resources Law Review

The Supreme Court of the United States will hear oral arguments in this matter on Tuesday, December 3, 2019, at 11:00 a.m. in the Supreme Court Building in Washington, D.C. Lisa S. Blatt will likely appear for the Petitioner. Joseph R. Palmore will likely appear for the Respondents. Solicitor General Noel J. Francisco will likely argue on behalf of the United States.

Disrupting Business As Usual: Considering Teaching Methods In Business Law Classrooms, Jeffery Hewitt, Shanthi E. Senthe

Dalhousie Law Journal

The Truth and Reconciliation Commission of Canada (TRC)’s Calls to Action propose signimcant changes to legal education. No law school classroom is exempt, including business law courses. We are two of a growing number ofscholars in the legal academy actively incorporating Indigenous laws, critical race theory and socio-economic perspectives into business law courses as part of our responses to the TRC. This paper explores a field school we developed at Windsor Law as a response to the Calls to Action. In a temporary fusion of two courses, Secured Transactions along with Indigenous Peoples, Art & Human Rights, a synergy emerges …

Judicial Treatment Of Aboriginal Peoples’ Oral History Evidence: More Room For Reconciliation, Jimmy Peterson

Dalhousie Law Journal

Oral history is the only past record in many Aboriginal groups in Canada. In 1997, in Delgamuukw, the Supreme Court of Canada recognized that the strict approach to evidence law with respect to oral history had to be relaxed for Aboriginal peoples to be able to pursue claims to Aboriginal rights or Aboriginal title. This was a necessary element of the attempt to achieve reconciliation between Aboriginal and non-Aboriginal peoples. Yet, while evidence law has become increasingly flexible when it comes to accommodating Aboriginal peoples, courts have struggled with how to value oral traditions. A review of the case …

Wildearth Guardians V. Zinke, Emily M. Mcculloch

Public Land & Resources Law Review

WildEarth Guardians v. Zinke marks an important decision prompting the Bureau of Land Management to seriously consider greenhouse gas emissions when performing environmental assessments for oil and gas leasing. WildEarth Guardians and Physicians for Social Responsibility, two non-profit organizations, asserted BLM improperly failed to recognize greenhouse gas emissions and their impacts on climate change when issuing oil and gas leases in three western states. The United States District Court for the District of Columbia agreed, finding that by failing to take a hard look at environmental impacts from its leasing decisions, BLM violated the National Environmental Policy Act’s requirements.

Citizens For Clean Energy V. United States Department Of The Interior, Anthony Reed

Public Land & Resources Law Review

In 2017, Secretary of the Interior Ryan Zinke issued a new order lifting the previous administration’s 2016 Jewell Order that had placed a moratorium on mineral leases until a programmatic EIS was completed. The new order repealed the moratorium, cancelled the programmatic EIS, and instructed the BLM to expedite new mineral lease applications. Several plaintiffs challenged Zinke’s order, and the United States District Court for the District of Montana ruled that it was a major federal action that triggered NEPA analysis and that the agency acted arbitrarily and capriciously when it issued the order without any environmental review.

Preview—Murray V. Bej Minerals, Llc: Finding A Home For Fossils, Layne L. Ryerson

Public Land & Resources Law Review

The Montana Supreme Court will hear oral arguments in this matter on Thursday, November 7, 2019 at 9:30 AM in the courtroom of the Montana Supreme Court, Joseph P. Mazurek Building, Helena, Montana. The Honorable Olivia Rieger will hear the case in place of Justice Jim Rice, who recused himself. Eric B. Wolff is expected to argue for the Appellants. Harlan B. Krogh is expected to argue for the Appellees.

Herrera V. Wyoming, Dylan M. Jaicks

Public Land & Resources Law Review

Stemming from the conviction of a Crow tribal member for illegal hunting, Herrera v. Wyoming reignited long-running questions concerning treaty abrogation and precedent. In an effort to clarify conflicting case law, the Supreme Court upheld the Crow Tribe’s reserved hunting rights and rejected the argument that statehood extinguished such rights.

Decolonizing Reservation Economies: Returning To Private Enterprise And Trade, Adam Crepelle

The Journal of Business, Entrepreneurship & the Law

Tribes can solve many of their socioeconomic problems by embracing their traditional economic practices. Transforming reservation conditions begins by tribes enacting laws and developing institutions that are conducive to private enterprise. Similarly, tribes must embrace trade—both with foreign nations and other tribes. By returning to trade-based economies and adopting laws that facilitate private enterprise, tribes can decolonize reservation economies. The rest of the article proceeds as follows. Part I discusses Indian economic practices prior to European contact and examines the United States’ various Indian policies, removal to the present-day self-determination era. Part II of the paper analyzes various federal, state, …

Patently Inconsistent: State And Tribal Sovereign Immunity In Inter Partes Review, John Mixon

St. John's Law Review

(Excerpt)

This Note is composed of four parts. Part I reviews the origins, development, and purpose of both tribal and state sovereign immunity, compares the two doctrines, and concludes that the two are functionally the same despite deriving from different historical roots. Part II provides an overview of the history and purpose behind the patent system, the America Invents Act, and IPRs. Part II also analyzes the constitutionality of IPRs, as decided by the Supreme Court in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC. Part III introduces and addresses the five IPR decisions on state sovereign …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Native American Religious Freedom As A Collective Right, Michael D. Mcnally

BYU Law Review

No abstract provided.

A Framework For Tribal Public Health Law, Aila Hoss

Nevada Law Journal

No abstract provided.

Vawa Reauthorization Of 2013 And The Continued Legacy Of Violence Against Indigenous Women: A Critical Outsider Jurisprudence Perspective, Luhui Whitebear

University of Miami Race & Social Justice Law Review

No abstract provided.

Environmentalism Isn’T New: Lessons From Indigenous Law, Joseph Kowalski

Buffalo Environmental Law Journal

The much-overlooked laws and lifeways of Indigenous people show that concepts of environmental sustainability have long been a part of the human tradition. By studying the Indigenous jurisprudence of societies that maintained these traditions into the modern era, much can be learned. Rather than making laws in regards to the land, the land itself was the source of the law, for the environmental laws were built around a relationship with the land.

Through most of human history, the western world had a similar relationship. However, the Holy Roman Empire’s interpretation of Biblical scripture, which at that time was law, forever …

Book Review Of "River Of Lost Souls", Clifford J. Villa

Public Land & Resources Law Review

No abstract provided.

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 …

'Race, Racism, And American Law': A Seminar From The Indigenous, Black, And Immigrant Legal Perspectives, Eduardo R.C. Capulong, Andrew King-Ries, Monte Mills

The Scholar: St. Mary's Law Review on Race and Social Justice

Flagrant racism has characterized the Trump era from the onset. Beginning with the 2016 presidential campaign, Trump has inflamed long-festering racial wounds and unleashed White supremacist reaction to the nation’s first Black President, in the process destabilizing our sense of the nation’s racial progress and upending core principles of legality, equality, and justice. As law professors, we sought to rise to these challenges and prepare the next generation of lawyers to succeed in a different and more polarized future. Our shared commitment resulted in a new course, “Race, Racism, and American Law,” in which we sought to explore the roots …

Texas Indian Holocaust And Survival: Mcallen Grace Brethren Church V. Salazar, Milo Colton

The Scholar: St. Mary's Law Review on Race and Social Justice

When the first Europeans entered the land that would one day be called Texas, they found a place that contained more Indian tribes than any other would-be American state at the time. At the turn of the twentieth century, the federal government documented that American Indians in Texas were nearly extinct, decreasing in number from 708 people in 1890 to 470 in 1900. A century later, the U.S. census recorded an explosion in the American Indian population living in Texas at 215,599 people. By 2010, that population jumped to 315,264 people.

Part One of this Article chronicles the forces contributing …

Improving Justice And Avoiding Colonization In Managing Climate Change Related Disasters: A Case Study Of Alaska Native Villages, Elizaveta Barrett Ristroph

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

No abstract provided.

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.