Law Commons^™

Revising The Indian Plenary Power Doctrine, M. Henry Ishtani, Alexandra Fay

Michigan Journal of Race and Law

The federal Indian law doctrine of Congressional plenary power is long overdue for an overhaul. Since its troubling nineteenth-century origins in Kagama v. United States (1886), plenary power has justified invasive Congressional interventions and undermined Tribal sovereignty. The doctrine's legal basis remains a constitutional conundrum. This Article considers the Court's recent engagement with plenary power in Haaland v. Brackeen (2023). It argues that the Brackeen opinions may signal judicial readiness to reevaluate the doctrine. The Article takes ahold of Justice Gorsuch's critical assessment and runs with it, ultimately proposing a method for cleaning up this destructive and constitutionally dubious line …

Narrowing From Below: How Lower Courts Can Limit Castro-Huerta, Michaela B. Parks

Arkansas Law Review

This Note will offer a plan for how Indian country can move forward in the wake of what anti-tribal sovereignty entities want to be a devasting decision. This Note advocates for a judicial remedy plan. Specifically, it calls upon lower courts to narrow Castro-Huerta from below to limit the effects of the decision. Part II provides a brief introduction to federal Indian law, a general overview of criminal jurisdiction in Indian country, and concludes with a summary of Castro-Huerta. Part III outlines two approaches to limiting that lower courts can use to narrow Castro-Huerta from below: textual limiting and fact-to-fact …

The Indian Child Welfare Act In The Multiverse, M. Alexander Pearl

Michigan Law Review

A Review of Adoptive Couple v. Baby Girl By Matthew L.M. Fletcher and Kathryn E. Fort, in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law 452, 471. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig.

Textualism And The Indian Canons Of Statutory Construction, Alex Tallchief Skibine

University of Michigan Journal of Law Reform

When interpreting statutes enacted for the benefit or regulation of Indians or construing treaties signed with Indian nations, courts are supposed to apply any of five specific canons of construction relating to Indian Affairs. Through examining the modern line of Supreme Court cases involving statutory or treaty interpretation relating to Indian nations, this Article demonstrates that the Court has generally been faithful in applying canons relating to treaty interpretation or abrogation. The Court has also respected the canon requiring unequivocal expression of congressional intent before finding an abrogation of tribal sovereign immunity. However, there are two other canons that the …

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 …

Legal Issues In Tribal E-Commerce, Adam Crepelle

American University Business Law Review

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 …

Permanent Homelands Through Treaties With The United States: Restoring Faith In The Tribal Nation-U.S. Relationship In Light Of The Mcgirt Decision, Angelique Eaglewoman

Mitchell Hamline Law Review

No abstract provided.

The Importance Of Education And Trust Building For Wabanaki Self-Governance, Katie Tomer

Maine Policy Review

Education and trust building are inextricably intertwined parts of addressing failed efforts of the state of Maine and the Wabanaki tribes to resolve tribal self-governance issues. Lack of structural and financial support for the delivery of Wabanaki Studies Law content directly affects tribal-state relations and Wabanaki self-determination in Maine. This article examines legislative proposals, current laws, and scholarly research and explore how they relate to tribal self-governance. Maine needs strategies for trust building and increased educational experiences for all Maine residents about Wabanaki people and ways of knowing.

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 …

Indian Nations And The Constitution, Joseph William Singer

Maine Law Review

This Constitution Day speech focuses on how the Constitution has been interpreted both to protect and to undermine the sovereignty of Indian nations. The good news is that both the text of the Constitution and the practice of the United States have recognized Indian nations as sovereigns who pre-existed the creation of the United States and who retain their inherent original sovereignty. The bad news is that the Constitution has often been interpreted by the Supreme Court to deny Indian nations protection for their property rights and their sovereignty. Most Americans are not aware of the history of interactions between …

The Unseen Harm: U.S.-Indian Relations & Tribal Sovereignty, George Emmons

Golden Gate University Law Review

This article explores tribal sovereignty through the lens of the Standing Rock Sioux and its opposition to the DAPL. The DAPL situation is a symptom of the larger problem of a lack of tribal consultation, which diminishes tribal sovereignty and tribal rights.

Part I discusses the history of tribal sovereignty through an explanation of the domestic dependent status of Indian tribes and the two historic canons of Indian treaty interpretation. The Court’s interpretation and application of these canons in the cases of Winters, Dion, and Bourland have a direct relation to the amount of protection given to Indian tribes.

Part …

Lewis V. Clarke, Summer L. Carmack

Public Land & Resources Law Review

One manner in which Indian tribes exercise their inherent sovereignty is by asserting sovereign immunity. In Lewis v. Clarke, the Court decided that the sovereign immunity extended to instrumentalities of tribes did not further extend to tribal employees acting within the scope of their employment. The Court acknowledged the concerns of the lower court, namely, the possibility of setting a precedent allowing future plaintiffs to sidestep a tribe’s sovereign immunity by suing a tribal employee in his individual capacity. However, the Supreme Court ultimately felt that the immunity of tribal employees should not exceed the immunity extended to state …

Akiachak Native Community V. United States Department Of Interior, Lillian M. Alvernaz

Public Land & Resources Law Review

Alaska Native Tribes have long been classified differently than the federally recognized Indian tribes in the rest of the country. The Akiachak decision contributes to the shifting treatment of Alaska Native Tribes and clarifies their relationship with the federal government. The ability to put land into trust is essential to the protection of generations to come and the exercise of sovereign authority. By enabling Alaska Native tribes the ability to petition to put tribally owned fee land in trust, the DOI promotes and encourages tribal self-governance and empowerment.

Traditional Problems: How Tribal Same-Sex Marriage Bans Threaten Tribal Sovereignty, Marcia Zug

Mitchell Hamline Law Review

No abstract provided.

Maxwell, Lewis V. Clarke, And The Trail Around Tribal Sovereign Immunity, Allison Hester

University of Colorado Law Review

Tribal sovereign immunity is an important tool available to American Indian tribes as they have rebuilt, restructured, and rejuvenated their communities in the era of Self- Determination following centuries of colonialism, land grabs, and cultural genocide. Sovereign immunity protects tribes by establishing a barrier to both trampling of tribal sovereignty through non-tribal courts and costly adverse judgments. Recent precedent from the Ninth Circuit has weakened tribal sovereign immunity. Maxwell v. County of San Diego, pivoting from previous decisions, held that tribal employees can be sued individually for money damages for actions taken in the course and scope of their employmentas …

Close To Zero: The Reliance On Minimum Blood Quantum Requirements To Eliminate Tribal Citizenship In The Allotment Acts And The Post-Adoptive Couple Challenges To The Constitutionality Of Icwa, Abi Fain, Mary Kathryn Nagle

Mitchell Hamline Law Review

No abstract provided.

United States V. Washington, Kirsa Shelkey

Public Land & Resources Law Review

Pacific Northwest Treaties, now known as the Stevens Treaties, were negotiated in the 1850’s between the U.S. and Indian tribes, including the Suquamish Indian Tribe, Jamestown S'Klallam, Lower Elwha Band of Klallams, Port Gamble Clallam, Nisqually Indian Tribe, Nooksack Tribe, Sauk-Suiattle Tribe, Skokomish Indian Tribe, Squaxin Island Tribe, Stillaguamish Tribe, Upper Skagit Tribe, Tulalip Tribes, Lummi Indian Nation, Quinault Indian Nation, Puyallup Tribe, Hoh Tribe, Confederated Tribes and Bands of the Yakama Indian Nation, Quileute Indian Tribe, Makah Indian Tribe, Swinomish Indian Tribal Community, and the Muckleshoot Indian Tribe (“Tribes”). The Stevens Treaties stated that “the right of taking fish, …

Analysis Of A Bias-Based Exception To The Doctrine Of Exhaustion In Wilson V. Bull, R. Mitchell Mcgrew

American Indian Law Review

No abstract provided.

Tribal Strategies For Protecting And Preserving Groundwater, Stephen V. Quesenberry, Timothy C. Seward, Adam P. Bailey

William Mitchell Law Review

No abstract provided.

Tribal Authority To Protect Water Resources And Reserved Rights Under Clean Water Act Section 401, Paula Goodman Maccabee

William Mitchell Law Review

No abstract provided.

Misadventures In Indian Law: The Supreme Court's Patchak Decision, Anna O'Brien

University of Colorado Law Review

"After today, any person may sue under the Administrative Procedure Act . .. to divest the Federal Government of title to and possession of land held in trust for Indian tribes . . . so long as the complaint does not assert a personal interest in the land.' - Justice Sotomayor, dissenting in Match-E-Be-Nash- She- Wish Band of Pottawatomi Indians v. Patchak. Ever since European colonization of the Americas began in the fifteenth century, there has been friction between the new arrivals and the native inhabitants. The United States has dealt with its "Indian problem" through assimilation, reservations, and eventually, …

Comparative Institutional Competency And Sovereignty In Indian Affairs, Michalyn Steele

University of Colorado Law Review

While vigorous debate surrounds the proper scope and ambit of inherent tribal authority, there remains a critical antecedent question: whether Congress or the courts are ultimately best situated to define the contours of inherent tribal authority. In February 2013, Congress enacted controversial tribal jurisdiction provisions as part of the Violence Against Women Act reauthorization recognizing and affirming inherent tribal authority to prosecute all persons, including non-Indian offenders, for crimes of domestic violence in Indian country. This assertion by Congress of its authority to set the bounds of tribal inherent authority-beyond where the United States Supreme Court has held tribal inherent …

The Indian States Of America: Parallel Universes & Overlapping Sovereignty, Joseph William Singer

American Indian Law Review

No abstract provided.

State V. Jim: A New Era In Washington's Treatment Of The Tribes?, Matthew Deisen

American Indian Law Review

No abstract provided.

Remarks Of David H. Getches: Federal Bar Association Indian Law Conference (April 7, 2011), David H. Getches

University of Colorado Law Review

No abstract provided.

Never Construed To Their Prejudice: In Honor Of David Getches, Richard B. Collins

University of Colorado Law Review

This article reviews and analyzes the judicial canons of construction for Native American treaties and statutes. It discusses their theoretical justifications and practical applications. It concludes that the treaty canon has ready support in contract law and the law of treaty interpretation. Justification of the statutory canon is more challenging and could be strengthened by attention to the democratic deficit when Congress imposes laws on Indian country. Applications of the canons have mattered in disputes between Indian nations and private or state interests. They have made much less difference, and have suffered major failings, in disputes with the federal government. …

The Use Of The Alaskan Native Claims Settlement Act To Justify Disparate Treatment Of Alaska's Tribes, Natalie Landreth, Erin Dougherty

American Indian Law Review

No abstract provided.

Regaining Control Over The Children: Reversing The Legacy Of Assimilative Policies In Education, Child Welfare, And Juvenile Justice That Targeted Native American Youth, Ryan Seelau

American Indian Law Review

No abstract provided.

A Reason To Revisit Maine's Indian Claims Settlement Acts: The United Nations Declaration On The Rights Of Indigenous Peoples, Nicole Friederichs

American Indian Law Review

No abstract provided.