Law Commons^™

Tribal Court Jurisdiction And The Exhausting Nature Of Federal Court Interference, Kekek Jason Stark

University of Cincinnati Law Review

No abstract provided.

Tribal Cannabis Agriculture Law, Ryan B. Stoa

Utah Law Review

Indian tribes have some freedom to develop their own approach to cannabis agriculture, but what is the nature of that freedom, and how have tribes acted upon it?

This Article investigates the current legal framework surrounding tribal cannabis agriculture and tribal participation in legal cannabis markets. It is generally believed that tribes have some authority to determine the legality of cannabis cultivation on their lands, and to create rules and regulations governing that practice. However, this freedom is nascent and inconsistently granted by the federal government. In addition, the legal frameworks tribes are developing with respect to cannabis agriculture are …

Surviving Castro-Huerta: The Historical Perseverance Of The Basic Policy Of Worcester V. Georgia Protecting Tribal Autonomy, Notwithstanding One Supreme Court Opinion's Errant Narrative To The Contrary, John P. Lavelle

Faculty Scholarship

Oklahoma v. Castro‑Huerta is an unprecedented attack on the autonomy of Native American nations in the United States. The Supreme Court held that Oklahoma had jurisdiction over a crime committed by a non‑Indian perpetrator against an Indian victim within the Cherokee Reservation’s boundaries. The decision posits that states presumptively have jurisdiction, concurrent with the federal government, over crimes by non‑Indians against Indians in Indian country. But this proposition is at war with a bedrock principle of Indian law, namely, that reservations are essentially “free from state jurisdiction and control,” a policy that “is deeply rooted in the Nation’s history.” That …

Examining Comity And The Exhaustion Doctrine In Tribal Court Civil Jurisdiction: The Cherokee Nation’S Opioid Litigation, Joëlle Klein

Washington Law Review

The opioid epidemic has devastated communities throughout the United States over the last two decades. Native American and Alaska Native tribes faced disproportionate impacts and suffered the long-lasting consequences that opioid addiction causes families and communities. In response, states and municipalities across the United States sued the distributors and pharmacies responsible for illegally diverting opioids. In April of 2017, the Attorney General for the Cherokee Nation, Todd Hembree, initiated a civil suit against opioid pharmaceutical distributors and retailers: CVS, Walgreens, Wal-Mart (pharmacies), and McKesson, Cardinal Health, and AmerisourceBergen (distributors). Although other tribes in the United States also brought claims against …

Why Our Stories Matter: A Perspective On The Restatement From The State Bench, Raquel Montoya-Lewis

Washington Law Review

No abstract provided.

Bringing Congress And Indians Back Into Federal Indian Law: The Restatement Of The Law Of American Indians, Kirsten Matoy Carlson

Washington Law Review

Congress and Native Nations have renegotiated the federal-tribal relationship in the past fifty years. The courts, however, have failed to keep up with Congress and recognize this modern federal-tribal relationship. As a result, scholars, judges, and practitioners often characterize federal Indian law as incoherent and inconsistent. This Article argues that the Restatement of the Law of American Indians retells federal Indian law to close the gap between statutory and decisional law. It realigns federal Indian law with the modern federal-tribal relationship negotiated between Congress and tribal governments. Consistent with almost a half-century of congressional law and policy, the Restatement clarifies …

Tribal Sovereignty And Economic Efficiency Versus The Courts, Robert J. Miller

Washington Law Review

American Indian reservations are the poorest parts of the United States, and a higher percentage of Indian families across the country live below the poverty line than any other ethnic or racial sector. Indian nations and Indian peoples also suffer from the highest unemployment rates in the country and have the highest substandard housing rates. The vast majority of the over three hundred Indian reservations and the Alaska Native villages do not have functioning economies. This lack of economic activity starves tribal governments of the tax revenues that governments need to function. In response, Indian nations create and operate business …

Preview—Oklahoma V. Castro-Huerta: A Test Of State And Tribal Sovereignty, Genevieve Antonioli Schmit

Public Land & Resources Law Review

Oklahoma v. Castro-Huerta challenges the reach of the United States Supreme Court’s landmark ruling in McGirt v. Oklahoma and tests the settled criminal jurisdiction scheme within Indian Country. On April 27, 2022, beginning at 10:00 a.m. EST., the U.S. Supreme Court will hear argument on the sole question of whether a state court has concurrent jurisdiction with a federal court to prosecute non-Indians who commit crimes against Indians in Indian country. The State of Oklahoma (“Petitioner”) argues that it has concurrent jurisdiction to prosecute such crimes. Castro-Huerta (“Respondent”) argues that the Court should adopt the current understanding that the …

The Power Of Reciprocity: How The Confederated Salish & Kootenai Water Compact Illuminates A Path Toward Natural Resources Reconciliation, Michelle Bryan

Faculty Law Review Articles

This article chronicles the negotiation and passage of the Confederated Salish & Kootenai Tribes Water Compact, ratified in 2020, which has created one of the most innovative water management regimes envisioned among sovereigns. The Compact’s journey toward ratification is extraordinary, as the parties over the span of three decades worked to overcome historically entrenched racism and political opposition to craft a model that would provide enough water for all peoples and the fishery. Compounding the challenge, the Flathead Reservation itself contains vast swaths of checkerboard land held by non-Indians and a major federal irrigation project that has permanently altered the …

Legal Issues In Tribal E-Commerce, Adam Crepelle

American University Business Law Review

No abstract provided.

Sacrificing The Salmon: A Legal History Of The Decline Of Columbia Basin Salmon (Full Text Part 2 Of 2), Michael Blumm

Books & Contributions to Books

Salmon remain the cultural and economic soul of the Pacific Northwest, a species whose very life cycle largely defines the region. At the center of the salmon region lies the Columbia River, which once supported the world's largest salmon runs and which now is home to the world's largest interconnected hydroelectric system. These massive federal and non-federal dams have devastated Columbia Basin salmon runs, some of which are now extinct, others are on life-support.

This book tells the story of the decline of the Columbia Basin salmon in the 20th century. But it begins earlier, with the signing of mid-19th …

Of Reservation Boundary Lines And Judicial Battle Lines, Part 1 - Reservation Diminishment/Disestablishment Cases From 1962 To 1975: The Indian Law Justice Files, Episode 1, John P. Lavelle

Faculty Scholarship

This Article is the first of a two-part investigation into the Indian law doctrine of reservation diminishment/disestablishment, examining Supreme Court decisions in this area in light of insights gathered from the collected papers of individual Justices archived at the Library of Congress and various university libraries. The Article first addresses Seymour v. Superintendent (1962) and Mattz v. Arnett (1973), observing that these first two diminishment/disestablishment cases are modern applications of basic, longstanding principles of Indian law which are highly protective of Indigenous people’s rights and tribal sovereignty. The Article then examines in detail DeCoteau v. District County Court, the anomalous …

Has Federal Indian Law Finally Arrived At “The Far End Of The Trail Of Tears”?, Ann Tweedy

Georgia State University Law Review

This Article examines the United States Supreme Court’s July 9, 2020 decision in McGirt v. Oklahoma, which held that the historic boundaries of the Creek reservation remain intact, and argues that the decision may signal a sea change in the course of federal Indian law of the magnitude of Obergefell v. Hodges in the LGBT rights arena. The Article shows how the opinion lays a very strong foundation for a much-needed return to traditional federal Indian law principles, respectful treatment of tribal governments as a third sovereign in the American system, and an understanding of fairness from the perspective of …

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 …

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 …

The Tribal Right To Exclude Non-Tribal Members From Indian-Owned Lands, Alexander Tallchief Skibine

Utah Law Faculty Scholarship

In 1981, the Supreme Court issued its decision in Montana v. United States, severely restricting the ability of Indian Tribes to assume civil regulatory and adjudicatory jurisdiction over non-tribal members for activities taking place on non-Indian lands within Indian reservations. The Court in Montana stated that “it could readily agree” with the Court of Appeals’ holding that the tribe could regulate the conduct of non-member on tribal lands. Yet, twenty years later, the Court issued its opinion in Nevada v. Hicks holding that in certain circumstances, the jurisdiction of Indian tribes could also be limited even if the activities of …

Implementing The United Nations Declaration On The Rights Of Indigenous Peoples In The United States: A Call To Action For Inspired Advocacy In Indian Country., Kristen Carpenter, Edyael Casaperalta, Danielle Lazore-Thompson

University of Colorado Law Review Forum

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 …

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

American Indian Law Journal

No abstract provided.

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.

'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 …

Solenex Llc V. Jewell, F. Aaron Rains

Public Land & Resources Law Review

In Solenex LLC v. Jewell, the Secretary of the Interior cancelled a highly contentious oil and gas lease in Montana’s Badger-Two Medicine area, an environmentally sensitive and culturally significant area to the Blackfeet Tribe, nearly thirty years after the lease had been issued. Solenex, a Louisiana based oil and gas company and holder of the lease, brought this action to enjoin the cancellation. The District Court for the District of Columbia agreed with Solenex and found that the Secretary’s decision took an unreasonable amount of time and violated good-faith contractual obligations. On these grounds, the court found the Secretary’s …

Traditional Ecological Knowledge In Environmental Decisionmaking, Anthony Moffa

Faculty Publications

Traditional ecological knowledge (TEK) is defined as a deep understanding of the environment developed by local communities and indigenous peoples over generations. In the United States, Canada, and around the world, indigenous peoples are increasingly advocating for incorporation of TEK into a range of environmental decisionmaking contexts, including natural resource and wildlife management, pollution standards, environmental and social planning, environmental impact assessment, and adaptation to climate change. On October 31, 2018, ELI hosted an expert panel on TEK, co-sponsored by the National Native American Bar Association and the American Bar Association Section of Environment, Energy, and Resources. The panel discussed …

Highway Culverts, Salmon Runs, And The Stevens Treaties: A Century Of Litigating Pacific Northwest Tribal Fishing Rights, Ryan Hickey

Public Land & Resources Law Review

Isaac Stevens, then Superintendent of Indian Affairs and Governor of Washington Territory, negotiated a series of treaties with Indian tribes in the Pacific Northwest during 1854 and 1855. A century and a half later in 2001, the United States joined 21 Indian tribes in filing a Request for Determination in the United States District Court for the District of Washington. Plaintiffs alleged the State of Washington had violated those 150-year-old treaties, which remained in effect, by building and maintaining culverts under roads that prevented salmon passage. This litigation eventually reached the Ninth Circuit Court of Appeals, which held in favor …

Collaboration Through Nepa: Achieving A Social License To Operate On Federal Public Lands, Temple Stoellinger, L. Steven Smutko, Jessica M. Western

Public Land & Resources Law Review

As demand and consumption of natural gas increases, so will drilling operations to extract the natural gas on federal public lands. Fueled by the shale gas revolution, natural gas drilling operations are now frequently taking place, not only in the highly documented urban settings, but also on federal public lands with high conservation value. The phenomenon of increased drilling in sensitive locations, both urban and remote, has sparked increased public opposition, requiring oil and gas producers to reconsider how they engage the public. Oil and gas producers have increasingly deployed the concept of a social license to operate to gain …

Public-Private Conservation Agreements And The Greater Sage-Grouse, Justin R. Pidot

Public Land & Resources Law Review

In 2015, the Obama Administration announced its conservation plans for the greater sage-grouse, an iconic bird of the intermountain west.Political leadership at the time described those plans as the “largest landscape-level conservation effort in U.S. history,”and they served as the foundation for a decision by the U.S. Fish and Wildlife Service (“FWS”) that a listing of the bird was not warranted under the Endangered Species Act (“ESA”). The Trump Administration appears poised to substantially amend the plans, although an array of interested parties have urged that the plans be left intact. Regardless of the outcome of this debate, conservation of …

Streamlining The Production Of Clean Energy: Proposals To Reform The Hydroelectricity Licensing Process, Travis Kavulla, Laura Farkas

Public Land & Resources Law Review

Hydroelectric power is an efficient and clean source of power. In an era when air emissions dominate public concern about the environmental effects of the energy sector, it is a paradox that among the most highly regulated energy projects are hydroelectric dams, which do not combust fuel. This is partly due to a failure of successive statutory enactments,which have transformed hydroelectric licensing from a regulatory “one-stop shop” with a single regulator, to a process chained to a bewilderingnumber of often conflicting regulatory agencies, often riven with delay. Hydroelectric licensing has also failed because its capacious standard of review encourages special-interest …

Upper Skagit Indian Tribe V. Lundgren, Brett Berntsen

Public Land & Resources Law Review

Stemming from a property dispute between a private landowner and the Upper Skagit Indian Tribe, this action evolved into a debate concerning the scope of tribal sovereign immunity and whether Indian tribes should be bound by certain common law doctrines applicable to most other sovereigns. The Washington Supreme Court originally ruled against the Tribe, citing County of Yakima v. Confederated Tribes and Bands of Yakima Nation in holding that sovereign immunity does not apply to in rem actions. The United States Supreme Court granted certiorari to clarify that its ruling in Yakima did not support such a proposition. The case …

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

Articles

No abstract provided.

A Proposal For A National Tribally Owned Lien Filing System To Support Access To Capital In Indian Country, William H. Henning, Susan M. Woodrow, Marek Dubovec

Faculty Scholarship

This article sets forth a proposal to develop and implement a national, state-of-the-art, all-electronic filing system to support tribes’ secured-transactions laws, with the goal of improving access to capital for tribes, tribal consumers, and, most importantly, independent Native-owned businesses. Tribes are increasingly recognizing the need to establish a sound commercial legal infrastructure, including in particular a modern secured-transactions law, to support sustainable business development. Toward this end, many tribes have adopted the Model Tribal Secured Transactions Act (MTSTA), and many more are in the process of reviewing the act for adoption. Central to the functioning of any secured-transactions law is …