Law Commons^™

Agency Pragmatism In Addressing Law’S Failure: The Curious Case Of Federal “Deemed Approvals” Of Tribal-State Gaming Compacts, Kevin K. Washburn

University of Michigan Journal of Law Reform

In the Indian Gaming Regulatory Act of 1988 (IGRA), Congress imposed a decision-forcing mechanism on the Secretary of the Interior related to tribal-state compacts for Indian gaming. Congress authorized the Secretary to review such compacts and approve or disapprove each compact within forty-five days of submission. Under an unusual provision of law, however, if the Secretary fails to act within forty-five days, the compact is “deemed approved” by operation of law but only to the extent that it is lawful. In a curious development, this regime has been used in a different manner than Congress intended. Since the United States …

Rent-A-Tribe: Tribal Immunity To Shield Patents From Administrative Review, Seth W.R. Brickey

Washington Law Review

In 2017, Allergan Pharmaceuticals entered into an agreement with the Saint Regis Mohawk Tribe (SRMT). Allergan agreed to assign several patents to SRMT and to pay an initial sum of $13.75 million and annual royalties of approximately $15 million. SRMT, in exchange, licensed the rights to use the patents back to Allergan and agreed not to waive its tribal immunity in any administrative proceeding challenging the patents. Two outcomes were expected as a result of this Allergan-Mohawk agreement. First, Allergan would retain the rights to manufacture and market a highly profitable drug while insulating the underlying patents from an unforgiving …

Report From The Royalty Policy Committee: The Past, Present, And Future Of The Royalty Policy Committee, Monte Mills

Faculty Books & Book Chapters

This report was Prepared for the Rocky Mountain Mineral Law Foundation Special Institute on Federal and Indian Oil & Gas Royalty Valuation and Management: Panel: Report from the Royalty Policy Committee October 24, 2018 ~ Houston, Texas

The Impact Of The Honour Of The Crown On The Ethical Obligations Of Government Lawyers: A Duty Of Honourable Dealing, Andrew Flavelle Martin, Candice Telfer

Dalhousie Law Journal

The honour of the Crown is recognized as a Canadian constitutional principle that is essential to reconciliation between Indigenous and non-Indigenous Canadians. As part of the process of reconciliation, this article argues that the honour of the Crown imposes a special ethical obligation on government lawyers in specific circumstances, which we call the duty of honourable dealing. We situate this duty in the divided literature and case law about whether government lawyers have special ethical obligations and in the two dimensions in which the honour of the Crown applies: the Crown as an institution and the Crown as a collection …

Canada's Residential Schools And The Right To Integrity, Amy Anderson, Dallas K. Miller, Dwight Newman

Dalhousie Law Journal

Apart from characterizations of the residential schools system as imposing cultural genocide, it is possible to understand the system in terms of a legal wrong involving violations of family integrity. The 19th and early 20th centuries saw increasing state intervention in families generally so as to impose compulsory education. However, wrongs in this intervention were recognized, and international law developed toward a right of family integrity that led to changes in non-Indigenous contexts. Evidence from the TRC shows that Canada did not respond as quickly in the Indigenous context, thus permitting an identification of how the residential schools system violated …

The Constitutionality Of Classification: Indigenous Overrepresentation And Security Policy In Canadian Federal Penitentiaries, D'Arcy Leitch

Dalhousie Law Journal

This article examines one component of the Correctional Service of Canada's (CSC) risk classification scheme. The CSC uses the Custody Rating Scale (CRS), a 12-item actuarial instrument, to measure risk and to provide security classification recommendations. Empirical data shows that while CRS recommendations may have some predictive validity, certain of the 12 items the CRS includes do not, particularly for Indigenous prisoners. This article makes the case that the inclusion ofsuch items in the CRS violates prisoner's rights under section 7 of the Charter by depriving them of liberty in a manner that is arbitrary and overbroad. Habeas corpus is …

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 …

Tensions Underlying The Indian Child Welfare Act: Tribal Jurisdiction Over Traditional State Court Family Law Matters, Elizabeth Maclachlan

BYU Law Review

State courts have historically exercised jurisdiction over family law cases. However, under the Indian Child Welfare Act (ICWA), Indian child custody and adoption cases have been taken out of state jurisdiction and placed with Indian tribal governments. State courts have pushed back against proper deference to ICWA and violate ICWA by misapplying its provisions and refusing to transfer custody and adoption cases to tribal courts. This Note analyzes the state-tribal tensions surrounding ICWA and argues that the primary reason for the lack of full state acceptance of ICWA is that, historically, states have had nearly total jurisdiction over family law …

Upstate Citizens For Equality, Inc. V. United States, Kirsa Shelkey

Public Land & Resources Law Review

The Indian Reorganization Act of 1935 is the proper avenue for Tribes pursuing restoration of their historic trust lands. The Oneida Indian Nation of New York long sought to reassert tribal jurisdiction over its historic homeland in Central New York. These efforts were largely unsuccessful until 2008 when the United States took 13,000 acres of this historic homeland into trust on behalf of the Tribe under the Indian Reorganization Act. This case affirms the federal government’s plenary powers over Indian Tribes, and that neither state sovereignty principles, nor the Enclave Clause upset that authority.

Tenth Anniversary Of The University Of Idaho's Native Law Program, Dylan R. Hedden-Nicely

Articles

No abstract provided.

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

Articles

No abstract provided.

Current Developments In Indian Water Law And Treaty Rights: Old Promises, Recent Challenges, And The Potential For A New Future, Monte Mills

Faculty Books & Book Chapters

Chapter nine of 64 Rocky Mt. Min. L. Inst. 9-1 (2018).

Intersectional Human Rights At Cedaw: Promises Transmissions And Impacts, Amanda Barbara Allen Dale

PhD Dissertations

Starting from the premise that international human rights law is not a neutral fact, this dissertation is a critical exploration of the promises, transmissions and impacts of intersectionality as an approach to gender protections in international human rights law. I begin with a definition of intersectionality at the individual claimant and jurisprudential levels, as an approach to anti-discrimination and equality law that attempts to move beyond static conceptions and fixed identities of discriminated subjects, and, based on Kimberl Crenshaws powerful metaphor of a traffic intersection, delineates the flow of discrimination as multi-directional, and injury as seldom attributable to a single …

The Seminole Water Rights Compact And The Seminole Indian Land Claims Settlement Act Of 1987, Jim Shore, Jerry C. Straus

Florida State University Journal of Land Use and Environmental Law

No abstract provided.

An Indian Site-Specific Religious Claim Again Trips Over Judeo-Christian Stumbling Blocks (Lyng V. Northwest Indian Cemetery Protective Association, 108 S. Ct. 1319 (1988))., Anita Clark Pryor, Gypsy Cowherd Bailey

Florida State University Journal of Land Use and Environmental Law

No abstract provided.

The Bald Eagle, The Florida Panther And The Nation's Word: An Essay On The "Quiet" Abrogation Of Indian Treaties And The Proper Reading Of United States V. Dion, Robert Laurence

Florida State University Journal of Land Use and Environmental Law

No abstract provided.

Indian Fishing Rights: A Lost Opportunity For Ecosystem Management, Martin H. Belsky

Florida State University Journal of Land Use and Environmental Law

This Article targets the problem of depletion of salmon and steelhead fisheries in the Northwest United States. The Article provides a brief overview of the Sohappy v. Smith and United States v. Washington decisions, which promoted regulation and conservation of these fisheries. Next, the Article discusses the Ecosystem Management Model, which these courts declined to adopt. Additionally, a description of the legislative measures taken in response to these two cases is provided. The Article concludes that adoption of an ecosystem management approach to fisheries management is essential to the future well-being of the fisheries in the Northwest United States.

Commercial Hazardous Waste Projects In Indian Country: An Opportunity For Tribal Economic Development Through Land Use Planning, Robert Sitkowski

Florida State University Journal of Land Use and Environmental Law

No abstract provided.

Motion For Leave To File Amicus Curiae Brief And Brief Of United Catcher Boats As Amicus Curiae In Support Of Petitioner - Makah Indian Tribe V. Quileute Indian Tribe And Quinault Indian Nation, Docket No. 17-1592 (139 S.Ct. 106 (2018))

Makah Indian Tribe v. Quileute Indian Tribe and Quinault Indian Nation, Docket No. 17-1592 (139 S.Ct. 106 (2018))

No abstract provided.

Brief Of Respondent State Of Washington Department Of Fish And Wildlife In Support Of Petition For Writ Of Certiorari - Makah Indian Tribe V. Quileute Indian Tribe And Quinault Indian Nation, Docket No. 17-1592 (139 S.Ct. 106 (2018))

Makah Indian Tribe v. Quileute Indian Tribe and Quinault Indian Nation, Docket No. 17-1592 (139 S.Ct. 106 (2018))

No abstract provided.

A View From American Courts: The Year In Indian Law 2017, Grant Christensen

Seattle University Law Review

This Article provides a comprehensive review of Indian law for 2017. It does not include a citation to every case related to Indian law issued by the courts but tries to incorporate the majority of opinions into its catalog to provide a robust discussion of the changes in Indian law over the course of 2017. Part I of this Article provides some general statistics about Indian law in 2017. Part II focuses on activity at the U.S. Supreme Court, which is the most watched forum for Indian law cases for obvious reasons. Part III groups cases by subject area and …

The State, The Tribe, And The Ugly: The Ninth Circuit Stakes A Bad Claim On Indian Land For Tribal Civil Jurisdiction Over Nonmembers In Window Rock Unified School District V. Reeves, Tyler L. Murphy

Villanova Law Review (1956 - )

No abstract provided.

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 …

Federal Indian Law, Verónica C. Gonzales

Faculty Scholarship

Introduction to Federal Indian Law, broken down by years: 1492, 1787, 1828, 1887, 1934, 1953, 1968 to the present. Includes major cases and additional resources.

I See You - A Story From The Haudenosaunee, Simone Anter J.D.

American Indian Law Journal

A young Apache woman sits on a bench outside of her university classroom; next to her is a stack of law books. She has just come from the first day of her first-year property class, where the professor lectured about the origins of property law devoid of any mention of Native people. As she sits she notices an individual walking along the sidewalk, towards her. This person wears a baseball hat with the Washington Redskins’ logo embellished on the front, a grotesque caricature of an “Indian.” The person’s attire includes a T-shirt featuring a skull wearing a feathered headdress, probably …

Tribal Exclusion Authority: Its Sovereign Basis With Recommendations For Federal Support, Jeremy Wood

American Indian Law Journal

No abstract provided.

Indian Child Welfare Act Annual Case Law Update And Commentary, Kathryn Fort, Adrian T. Smith

American Indian Law Journal

There are, on average, 200 appellate cases addressing the Indian Child Welfare Act (ICWA) annually—though this number includes published and unpublished opinions. There are usually around thirty reported state appellate court cases involving ICWA issues every year. There has never been a systematic look at the cases on appeal including an analysis of who is appealing, what the primary issues are on appeal, and what trends are present. This article seeks to fill that void.

This article provides a comprehensive catalog of published ICWA jurisprudence from across all fifty states in 2017. Designed as a quick reference for the ICWA …

August 2016 - August 2017 Case Law On American Indians, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Cdib: The Role Of The Certificate Of Degree Of Indian Blood In Defining Native American Legal Identity, Paul Spruhan

American Indian Law Journal

No abstract provided.

Native American Rights & Adoption By Non-Indian Families: The Manipulation And Distortion Of Public Opinion To Overthrow Icwa, Harman Bual

American Indian Law Journal

No abstract provided.