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Full-Text Articles in Law
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 …
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 …
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
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 …
Toward Genuine Tribal Consultation In The 21st Century, Colette Routel, Jeffrey K. Holth
Toward Genuine Tribal Consultation In The 21st Century, Colette Routel, Jeffrey K. Holth
Faculty Scholarship
The tribal right to consultation requires the federal government to consult with Indian tribes prior to the approval of any federal project, regulation, or agency policy. This article, which provides the first comprehensive analysis of this right, highlights the current inconsistencies in interpretation and application of the consultation duty. It then attempts to provide suggestions for changes that can be implemented by the legislative, executive or judicial branches.
In Part I, we provide a brief overview of the development of the trust responsibility and explain how it came to include three substantive duties: to provide services to tribal members, to …
Dakota Tribal Courts In Minnesota: Benchmarks Of Self-Determination, Sarah Deer, John E. Jacobson
Dakota Tribal Courts In Minnesota: Benchmarks Of Self-Determination, Sarah Deer, John E. Jacobson
Faculty Scholarship
Professor Frank Pommersheim has written that “[t]ribal courts are the front line institutions that most often confront issues of American Indian self-determination and sovereignty.”1 It is only fitting, then, that an issue devoted to the legal history and survival of Dakota people includes some information about the role Dakota tribal courts play in furthering the aims of self-determination. Of the over 565 federally recognized tribes in the United States, most operate some form of dispute resolution or judicial system—and all have distinct, unique histories and stories.2 Little has been written about the Dakota legal systems, and it is in the …
Testimony On The Regulation Of Indian Gaming, Oversight Hearing On The [Nigc] Minimum Internal Control Standards, Before The United States House Of Representatives, Committee On Resources, 109th Congress, 2nd Session, Kevin Washburn
Faculty Scholarship
State governments have an inherent conflict of interest in the regulation of Indian gaming. Strict regulation of Indian gaming can be good for the long term health of the industry, but may impact short term revenues. States have a strong short term interest in maximizing gaming revenue. Tribal governments should bear the primary responsibility for regulating Indian gaming. However, tribal regulators also have a weakness, namely, a myopia to the interests of other tribes and the national interests of the Indian gaming industry. Federal regulators can best protect the integrity of the industry nationally and ought to have a strong …
Testimony On The Regulation Of Indian Gaming, Oversight Hearing On Indian Gaming, Before The United States Senate, Committee On Indian Affairs, 109th Congress, 1st Session, Kevin Washburn
Faculty Scholarship
Federal and tribal regulation is likely to be more successful than state regulation of Indian gaming because tribal governments and the federal government have a greater interest in the long term success of Indian gaming. Uniform federal minimum internal control standards can protect the integrity of the Indian gaming industry nationwide. While federal regulators should exercise a powerful role, they must be respectful of tribal governments.
Testimony On The Regulation Of Indian Gaming, United States Senate, Committee On Indian Affairs, 109th Congress, 1st Session, Kevin Washburn
Testimony On The Regulation Of Indian Gaming, United States Senate, Committee On Indian Affairs, 109th Congress, 1st Session, Kevin Washburn
Faculty Scholarship
Congress must shore up NIGC regulatory authority over Class III gaming, guard against regulatory capture in tribal regulatory commissions, and reconsider the legitimacy of federal oversight of tribal economic decision-making. Congress should give the NIGC greater authority over licensure of those involved in Indian gaming and circumscribe the federal role over tribal economic decisions.