Law Commons^™

The Blind Eye: Jus Soli, And The "Pretended" Treaty Of New Echota, Christopher Robert Rossi

American Indian Law Journal

No abstract provided.

Case Law On American Indians, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

The Time Is Now For The Iachr To Address Climate Action As A Human Right: Indigenous Communities Can Lead (Again), Lara C. Diaconu

American Indian Law Journal

No abstract provided.

Southern Ute: Trial Court To Supreme Court, Elizabeth A. Mcclanahan, Jill M. Harrison

Journal of Natural Resources & Environmental Law

No abstract provided.

Marking The Path Post-Cotton: The Supreme Court Reaffirms Dual Taxation In Montana V. Crow Tribe Of Indians, Heather G. Pennington

Journal of Natural Resources & Environmental Law

No abstract provided.

Ohkay Owingeh Pueblo Tribal Court Handbook (2021), Tribal Law Journal Staff

Tribal Law Journal

This handbook helps take some of the mystery out of practicing in tribal courts. Without the necessary information to learn new rules and protocols many attorneys are understandably reluctant to practice in a new jurisdiction. As a result, tribal courts are underused or misused. This handbook is intended to help attorneys and advocates become more aware of the various individual tribal court systems and to learn their rules and protocol.

Equity Over Equality: Equal Protection And The Indian Child Welfare Act, Lucy Dempsey

Washington and Lee Law Review Online

In 2018, a Texas District Court shocked the nation by declaring the Indian Child Welfare Act (ICWA) unconstitutional pursuant to the Equal Protection Clause of the U.S. Constitution. The decision was overturned by the Fifth Circuit but may well be appealed to the U.S. Supreme Court. The ICWA provides a framework for the removal and placement of Indian children into foster and adoptive homes in such a way that attempts to reflect the unique values of Indian culture and supports the autonomy of the tribe. In doing so, the law treats Indian children differently than it would White children. But …

Preview—Yellen V. Confederated Tribes Of The Chehalis Reservation: Whether Alaska Native Corporations Are Eligible For Cares Act Relief Payments, Allison Barnwell

Public Land & Resources Law Review

The Supreme Court of the United States will hear oral arguments in this matter on Monday, April 19, 2021, telephonically, at 10 a.m. Solicitor General Elizabeth B. Prelogar will likely argue for the United States Department of Treasury. Paul D. Clement will likely appear for the Petitioner Alaska Native Village Corporation Association. Riyaz A. Kanji will likely argue for the Confederated Tribes of the Chehalis, and Jeffrey S. Rasmussen will likely appear for the Ute Indian Tribe of the Uintah and Ouray Reservation.

Preview— Montana And Wyoming V. Washington: The Commerce Clause And The Clean Water Act Collide Over Coal Exports, Rachel L. Wagner

Public Land & Resources Law Review

The Supreme Court of the United States has not scheduled oral arguments for this matter. In October 2020, the Court asked for the federal government’s views on the case but has not yet decided whether it will exercise its jurisdiction over the challenge.

Indigenous Dignity And The Right To Be Forgotten, Trevor Reed

BYU Law Review

No abstract provided.

White Tape And Indian Wards: Removing The Federal Bureaucracy To Empower Tribal Economies And Self-Government, Adam Crepelle

University of Michigan Journal of Law Reform

American Indians have the highest poverty rate in the United States, and dire poverty ensnares many reservations. With no private sector and abysmal infrastructure, reservations are frequently likened to third-world countries. Present-day Indian poverty is a direct consequence of present-day federal Indian law and policy. Two-hundred-year-old laws premised on Indian incompetency remain a part of the U.S. legal system; accordingly, Indian country is bound by heaps of federal regulations that apply nowhere else in the United States. The federal regulatory structure impedes tribal economic development and prevents tribes from controlling their own resources.

This Article asserts the federal regulatory “white …

Closing The Circle: Tribal Implementation Of The Superfund Program In The Reservation Environment, Richard A. Du Bey, James M. Grijalva

Journal of Natural Resources & Environmental Law

No abstract provided.

Anilca Under Attack: Will The Right To Travel Wreak Havoc With Subsistence Rights?, Kathy A. Gudgell

Journal of Natural Resources & Environmental Law

No abstract provided.

Jurisdiction Over Water Quality On Native American Lands, Charlotte Uram, Mary J. Decker

Journal of Natural Resources & Environmental Law

No abstract provided.

"Te Pee" As In Taxpayer: Tribal Severance Taxes--Canvassing The Reservation-Do Tribes Have The Power To Impose Severance Taxes On Minerals Extracted On Non-Indian Fee Lands Within The Reservation?, Michael Layne Carrico

Journal of Natural Resources & Environmental Law

No abstract provided.

Preview—United States V. Cooley: What Will Happen To The Thinnest Blue Line?, Jo J. Phippin

Public Land & Resources Law Review

The Supreme Court of the United States ("Supreme Court") will hear oral arguments in this matter on Tuesday, March 23, 2021. This case presents the narrow issue of whether a tribal police officer has the authority to investigate and detain a non-Indian on a public right-of-way within a reservation for a suspected violation of state or federal law. The lower courts, holding that tribes have no such authority, granted James Cooley’s motion to suppress evidence. The Supreme Court must decide whether the lower courts erred in so deciding. While the issue before the Supreme Court is itself narrow, it has …

“Magic Words” And Original Understanding: An Amplified Clear Statement Rule To Abrogate Tribal Sovereign Immunity, Justin W. Aimonetti

Pepperdine Law Review

The Indian plenary power doctrine—an invention of the late nineteenth-century Supreme Court—grants Congress exclusive authority to legislate with respect to Indian tribes, including the ability to abrogate tribal sovereign immunity. Under current doctrine, Congress must “unequivocally express” its intent to abrogate the sovereign immunity of Indian tribes with “explicit legislation.” Circuit courts tasked with applying this standard have split on the level of textual specificity required to strip tribes of their immunity. Employing the tools of statutory construction, courts are divided over whether the term ‘domestic government,’ as found in Section 106 of the Bankruptcy Code, unequivocally covers Indian tribes. …

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 …

The Wall That Trumps Environmental Law: A Review Of The Environmental And Legal Implications Of The U.S.-Mexico Border Wall, Olivia Merritt

Villanova Environmental Law Journal

No abstract provided.

Predicting Supreme Court Behavior In Indian Law Cases, Grant Christensen

Michigan Journal of Race and Law

This piece builds upon Matthew Fletcher’s call for additional empirical work in Indian law by creating a new dataset of Indian law opinions. The piece takes every Indian law case decided by the Supreme Court from the beginning of the Warren Court until the end of the 2019-2020 term. The scholarship first produces an Indian law scorecard that measures how often each Justice voted for the “pro- Indian” outcome. It then compares those results to the Justice’s political ideology to suggest that while there is a general trend that a more “liberal” Justice is more likely to favor the pro-Indian …

Indigenizing Grand Canyon, Jason Anthony Robison

Utah Law Review

The magical place commonly called the “Grand Canyon” is Native space. Eleven tribes hold traditional connections to the canyon according to the National Park Service. This Article is about relationships between these tribes and the agency—past, present, and future. Grand Canyon National Park’s 2019 centennial afforded a valuable opportunity to reflect on these relationships and to envision what they might become. A reconception of the relationships has begun in recent decades that evidences a shift across the National Park System as a whole. This reconception should continue. Drawing on the tribal vision for Bears Ears National Monument, this Article advocates …

Acoma Pueblo Tribal Court Handbook (2021), Tribal Law Journal Staff

Tribal Law Journal

This handbook helps take some of the mystery out of practicing in tribal courts. Without the necessary information to learn new rules and protocols many attorneys are understandably reluctant to practice in a new jurisdiction. As a result, tribal courts are underused or misused. This handbook is intended to help attorneys and advocates become more aware of the various individual tribal court systems and to learn their rules and protocol.

Taos Pueblo Tribal Court Handbook (2021), Tribal Law Journal Staff

Tribal Law Journal

This handbook helps take some of the mystery out of practicing in tribal courts. Without the necessary information to learn new rules and protocols many attorneys are understandably reluctant to practice in a new jurisdiction. As a result, tribal courts are underused or misused. This handbook is intended to help attorneys and advocates become more aware of the various individual tribal court systems and to learn their rules and protocol.

Santa Clara Pueblo V. Martinez In The Evolution Of Federal Law, Richard B. Collins

Tribal Law Journal

Few Indian law decisions have evoked as much scholarly attention as Santa Clara Pueblo.1 Shepard's pulls up over 1000 law review references, and Google reports almost 3,000,000 hits.2 It is a major case in all Indian law treatises and casebooks and is important in several other books.3 Most analyze the decision as an event and focus on its principal holding, denying a federal cause of action for civil enforcement of the Indian Civil Rights Act.4 Policy discussions parse tribal sovereignty and discrimination against women.

Tribal Justice: Honoring Indigenous Dispute Resolution (Symposium Keynote Address), Deb Haaland

Tribal Law Journal

Tribal Law Journal 20th Anniversary Symposium Keynote Address. I am working to weave our Native voice into a system that is not traditionally our own to make sure these legal fictions do not persist into another detrimental federal policy era. This symposium is highly valuable because it shows our community how important it is to incorporate indigenous traditional values into our legal system—but this is also important to highlight in our political systems and my effort to encourage more Native Americans to run for office and will continue. Native American people need to redefine all aspects of our governance systems …

Native American Oral Evidence: Finding A New Hearsay Exception, Max Virupaksha Katner

Tribal Law Journal

The Federal Rules of Evidence hearsay rules unjustifiably exclude legitimate and trustworthy evidence that support many Native American legal claims. Native American communities traditionally were not literate and rarely recorded the treaties, contracts, and other legal instruments they drew up or honored in any kind of written format, oftentimes recording their histories and diplomatic events in other ways; take for example wampum belts used by the Haudenosaunee Confederacy, among others. While the U.S. legal system presupposes that evidence in written statements provides a greater assurance of accuracy and truth than oral statements, this is not always the case. Writing is …

Tribal Opposition To Enbridge Line 5: Rights And Interests, John Minode’E Petoskey

Tribal Law Journal

This paper will examine the tribal interests at stake in the controversy surrounding Enbridge Oil Pipeline 5 (“Line 5”), and will explore why it is consistent with Michigan’s treaty obligations and public trust principles to remove the pipeline from the Straits of Mackinac. The Line runs beneath the Straits of Mackinac, the convergence of Lake Michigan and Lake Huron, and is nearly 70 years old. Should the pipeline burst, the resulting spill would irreparably harm fisheries in the Straits and impair tribal treaty rights to fish in the Great Lakes. Part I will provide a roadmap overview. Part II will …

The Secretary Of The Interior Has The Authority To Take Land Into Trust For Federally Recognized Alaska Tribes, Meghan O’Connor

American Indian Law Review

No abstract provided.

“The Desert Is Our Home”, Kayla Molina

American Indian Law Review

No abstract provided.