Law Commons^™

Reclaiming The Navajo Range: Resolving The Conflict Between Grazing Rights And Development, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

Grazing is fundamental to Navajo identity, yet management of the Navajo range remains highly problematic. This Essay connects the federal government's devastating livestock reduction effort of the 1930s with the inability of the Navajo Nation to place meaningful limits on grazing and the power of grazing permittees. It argues that the Navajo Nation should consider reasserting the tribe's traditional understanding that property rights depend on use as a way to create space for reservation development.

Trust Or Bust: Complications With Tribal Trust Obligations And Environmental Sovereignty, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Political Possibilities Of Reparations, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

This essay is a brief response to Gregory Alexander's article, published by Law and Social Inquiry, that generally argues against land reparations for past wrongs. This response argues that there are political reasons to leave land reparations on the table, focusing on the claims of Native American tribes.

Criminal Justice In Indian Country, M. Alexander Pearl

Faculty Publications

This Article examines the role played by different enacted legislation on California’s Indian tribes criminal justice system. For centuries, tribal governments were the only entities with criminal jurisdiction in Indian Country. In 1883, the Supreme Court in Ex parte Kan-Gi-Shun-Ka (Ex parte Crow Dog) confirmed that a crime committed by an Indian against another Indian did not give rise to federal jurisdiction. In response, Congress passed the Major Crimes Act, granting federal authorities the power to investigate, enforce, and prosecute certain crimes occurring in Indian Country. The federal statutes creating federal jurisdiction did not preclude tribal jurisdiction, but states …

Creating Space For Reservation Growth, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

This brief article is a review of Robert J. Miller, Reservation "Capitalism": Economic Development in Indian Country (2012). It highlights some of the significant points Miller makes in his book and concludes that the book is a "must read" for those interested in reservation economic development.

Muscogee Constitutional Jurisprudence: Vhakv Em Pvtakv (The Carpet Under The Law), Sarah Deer, Cecilia Knapp

Faculty Scholarship

In 1974, a group of Mvskoke citizens from Oklahoma sued the federal government in federal court. Hanging in the balance was the future of Mvskoke self-determination. The plaintiffs insisted that their 1867 Constitution remained in full effect, and that they still governed themselves pursuant to it. The United States argued that the constitution had been nullified by federal law passed in the early 1900s.

To find in favor of the plaintiffs, the court would have to rule that the United States had been ignoring the most basic civil rights of Mvskoke citizens and flouting the law for over seventy years. …

Criminal Justice In Indian Country, Sarah Deer

Faculty Scholarship

On March 7,2013, President Obama signed the 2013 Violence Against Women Act Re-authorization ("VAWA 2013"). Contained within that legislation is a partial re-authorization of tribal criminal jurisdiction over non-Indians, which is a topic covered in this short article. VAWA 2013 recognizes that the inherent right of tribal nations includes criminal jurisdiction over non-Indian defendants accused of domestic violence. The topics discussed in this article-statistical evidence, interdiction of violence, and protecting Native women-will likely become even more important as tribal leaders and jurists consider the future of tribal self-determination and seek to realize the full potential of the changes created by …

Indian Law: Dangerous Gamble: Child Support, Casino Dividends, And The Fate Of The Indian Family, Marcia A. Yablon-Zug

Faculty Publications

No abstract provided.

Gone But Not Forgotten: The Strange Afterlife Of The Jay Treaty's Indian Free Passage Right, Marcia A. Yablon-Zug

Faculty Publications

No abstract provided.

Customary Law: The Way Things Were, Codified, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

Frequently referred to as customary law, the unique traditions and customs of different Native American tribes are cited by their tribal courts as authoritative and binding law. The recent use of customary law as a mechanism for deciding individual cases is not uniform among tribal court systems as it differs depending upon which tribe's judges are working to place custom into contemporary judicial analysis. Understanding the present role of customary law in tribal law requires first understanding the nature of customary law and then understanding how it is being used. The effect of customary law is dependent upon the place …

Protecting Non-Indians From Harm? The Property Consequences Of Indians, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

This article is an exploration of the assumption, last made by the U.S. Supreme Court in City of Sherrill v. Oneida Indian Nation of New York, that non-Indian property owners are harmed by Indian acquisition and control of land. Accepting for the moment the Court's prioritization of a non-Indian perspective, the article explores (a) what lies behind non-Indian resistance to Indian land ownership, and (b) whether in fact non-Indians are harmed by proximity to Indian land. The article combines in its analysis core property law concepts with an empirical examination of the changes over time in assessed land value of …

Caution, Cooperative Agreements, And The Actual State Of Things: A Reply To Professor Fletcher, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

This short article argues that tribal governments considering entering into cooperative agreements with federal, state, or local governments ought to maintain a healthy skepticism regarding the non-tribal governments sitting across from them at the negotiating table and the appropriateness of entering into cooperative agreements.

When The State Bar Exam Embraces Indian Law: Teaching Experiences And Observations, Gloria Valencia-Weber, Sherri Nicole Thomas

Faculty Scholarship

In 2002, New Mexico became the first state to place Indian law on the state bar exam. This decision made basic knowledge of Indian law part of the competency expected of all licensed attorneys. This result arose from the University of New Mexico School of Law's (UNM) significant role as the only law school in the state. In combination with the social and political history of the state these elements produced this historic result. This paper outlines the history of Indian law at UNM and discusses the formal process that placed Indian law on the state's bar exam. The discussion …

The Trade-Off Between Self-Determination And The Trust Doctrine: Tribal Government And The Possibility Of Failure, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

This paper argues that tribes and scholars need to come to grips with the trade-off between trust and self-determination, and that failure to do so-by for example expressing a yearning that the trust doctrine was stronger-will lead to poor choices by tribes. Choices thus need to be based on an understanding of this trade-off and tribes must be aware that exercising self-determination inevitably will lead to a weakening of the trust doctrine over the areas which tribe's assume authority. This point is illustrated using a close analysis of the arguments used by the parties and the Supreme Court's treatment of …

The Nature Of Representation: The Cherokee Right To A Congressional Delegate, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

This paper explores the history and present day implications of the Cherokee Nation's 1835 treaty-based right to a Congressional Delegate.

Specific Relief For Ancient Deprivations Of Property, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

I consider in this paper the extent to which courts rationally and on a principled basis can deny to aboriginal claimants, despite the ancientness of their claims, the specific relief of being restored to possession of their aboriginal lands where the case for such specific relief is otherwise made. The paper begins with a brief discussion of the foundations of property in the Western conception, then goes on to discuss the Europeans' asserted title to indigenous lands and the various theories of aboriginal title that have emerged. It then explores the past and existing legal obstacles to the judicial resolution …

Multiple Authoritative Interpreters Of Quasi-Constitutional Federal Law: Of Tribal Courts And The Indian Civil Rights Act, Mark D. Rosen

All Faculty Scholarship

No abstract provided.

Every Man Has A Right To Decide His Own Destiny: The Development Of Native Hawaiian Self-Determination Compared To Self-Determination Of Native Alaskans And The People Of Puerto Rico, Michael W. Carroll

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Nature Of Aboriginal Title, Brian Slattery

Articles & Book Chapters

The concept of Aboriginal title is an autonomous concept of Canadian common law that bridges the gulf between Indigenous land systems and imported European land systems. It does not stem from Indigenous customary law, English common law or French civil law. It coordinates the interaction between these systems without forming part of them. In effect, it is a form of inter-societal common law.

The Outer Limits Of Community Self-Governance In Residential Associations, Municipalities, And Indian Country: A Liberal Theory, Mark D. Rosen

All Faculty Scholarship

This Article provides a normative framework that seeks to answer the questions of when and to what extent society should allow "dissident" communities to opt out of general culture and govern themselves. It surveys a number of such groups and develops an ideal typical conception of the ideology that drives them. Drawing on John Rawls' Political Liberalism, the Article then argues that foundational liberal commitments require that society grant most of these communities far greater powers to self-govern than currently are allowed under the law, subject to certain limits that the Article identifies. The Article then applies its framework to …

Justifying Repatriation Of Native American Cultural Property, Sarah K. Harding

All Faculty Scholarship

No abstract provided.

Book Review. Lone Wolf V. Hitchcock By Blue Clark, David C. Williams

Articles by Maurer Faculty

No abstract provided.

One River, Three Sovereigns: Indian And Interstate Water Rights, A. Dan Tarlock

All Faculty Scholarship

No abstract provided.

Three Affiliated Tribes Of Fort Berthold Reservation V. Wold Engineering, P.C., Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Papasan V. Allain, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Kerr-Mcgee Corporation V. Navajo Tribe Of Indians, Lewis F. Powell, Jr.

Supreme Court Case Files

No abstract provided.

United States V. Mitchell, Lewis F. Powell, Jr.

Supreme Court Case Files

No abstract provided.

Comment, United States V. Mitchell, Gail F. Whittemore

Elisabeth Haub School of Law Faculty Publications

Prior to 1946, in order for tribal Indians to gain access to courts for consideration of claims arising out of treaties between Indians and the United States, a special act of Congress was required in each case conferring jurisdiction on the court of claims to hear a tribe's grievance. Long delays, expense, and in many cases denial of access to court for Indians resulted. Seeking to remedy the situation, in 1946, Congress enacted the Indian Claims Commission Act. Under the Act, an Indian Claims Commission was given extremely broad jurisdiction to adjudicate the many outstanding Indian claims, including those "based …