Law Commons^™

Rethinking Protections For Indigenous Sacred Sites, Stephanie H. Barclay, Michalyn Steele

Journal Articles

Meaningful access to sacred sites is among the most important principles to the religious exercise of Indigenous peoples, yet tribes have been repeatedly thwarted by the federal government in their efforts to vindicate this practice of their religion. The colonial, state, and federal governments of this Nation have been desecrating and destroying Native American sacred sites since before the Republic was formed. Unfortunately, the callous destruction of Indigenous sacred sites is not just a troubling relic of the past. Rather, the threat to sacred sites and cultural resources continues today in the form of spoliation from development, as well as …

Revisiting Seminole Rock, Jeffrey A. Pojanowski

Journal Articles

The rule that reviewing courts must defer to agencies’ interpretations of their own regulations has come under scrutiny in recent years. Critics contend that this doctrine, often associated with the 1997 Supreme Court decision Auer v. Robbins, violates the separation of powers, gives agencies perverse regulatory incentives, and undermines the judiciary’s duty to say what the law is.

This essay offers a different argument as to why Auer is literally and prosaically bad law. Auer deference appears to be grounded on a misunderstanding of its originating case, the 1945 decision Bowles v. Seminole Rock. A closer look at Seminole Rock …

Tribal Court Praxis: One Year In The Life Of Twenty Tribal Courts, Nell Jessup Newton

Journal Articles

For a presentation, I read the eighty-five cases published in the Indian Law Reporter during 1996. I was struck by the diversity of the issues, the difficulty, complexity and subtlety of the choice of law, and other procedural and substantive issues addressed. I was most impressed by the richness of the dialogue in tribal court opinions—a dialogue between the court and the tribal councils, tribal people, and members of the bar. One may also read the opinions as initiating a conversation with the general public. A conversation requires listening, however.

In this article, I will bring to light the work …

Reconstituting Haudenosaunee Law, Sovereignty, And Governance, Errol E. Meidinger

Journal Articles

This article introduces a symposium issue on "Law, Sovereignty, and Tribal Governance: The Iroquois Confederacy" that grew out of a conference at the University at Buffalo Law School in 1998. The symposium was heavily attended and debated by the indigenous peoples of the region. The article argues that core lessons of the conference included the requirement to understand and implement sovereignty as tool of cultural survival, particularly in its insistence on a land base; that sovereignty has been adopted as a central concept by Indian peoples both because it provides a necessary social bulwark and because it facilitates a discursive …

Let A Thousand Policy-Flowers Bloom, Nell Jessup Newton

Journal Articles

This article will analyze recent legislative efforts. The first section of the article examines the two proposed national tribal organizations, a National Native American Advisory Council and a Tribal Judicial Conference, and demonstrates that they will not in fact represent all Indian tribes. The second section of the article criticizes the plan to create a national policy center in Washington, D.C., the National Indian Policy Institute. While agreeing that some of the data gathering and dissemination functions proposed for the center are needed, the article notes these functions can be more economically obtained than by creation of a new center. …

Recognizing And Enforcing State And Tribal Judgments: A Roundtable Discussion Of Law, Policy And Practice, Nell Jessup Newton

Journal Articles

My name is Sam Deloria, and I'm director of the American Indian Law Center. Today we are going to discuss issues regarding full faith and credit between state and tribal court systems. I would first like to introduce our distinguished panel. Ted Occhialino teaches at the University of New Mexico School of Law. Nell Newton teaches at American University Law School in Washington, D.C. The Honorable Christine Zuni is an appellate court judge with the Southwestern Intertribal Court of Appeals. The Honorable Richard E. Ransom is the chief justice of the New Mexico Supreme Court. Bob Clinton teaches at the …

Indian Claims In The Courts Of The Conqueror, Nell Jessup Newton

Journal Articles

The Federal Circuit reviews Indian claims because Congress combined the former Court of Claims, which had jurisdiction over Indian claims, with the Court of Patent and Customs Appeals to create the new Claims Court. The jurisdiction of the Court of Claims also included some patent cases as well as tax, contract, pay suits, takings cases, and congressional reference cases. Congress added the Court of Claims to this mix in part to counter the argument that the two new courts, the Claims Court and the Federal Circuit, would become overly specialized.

Indian claims comprise only a tiny portion of the jurisdiction …

Permanent Legislation To Correct Duro V. Reina, Nell Jessup Newton

Journal Articles

In Duro v. Reinal the Supreme Court held that Indian tribal courts do not have criminal jurisdiction over nonmember Indians. In so doing the Court extended its earlier holding in Oliphant v. Suquamish Indian Tribe, which had prevented tribes from exercising criminal jurisdiction over non-Indians and struck a serious blow to tribal sovereignty. The Oliphant decision has been soundly criticized as ahistorical and even dishonest, as well as essentially ethnocentric. The case also posed grave dangers to tribal people, because of the great number of nonmember Indians who live and work on Indian reservations, and the fact that nonmembers fall …

The Criminal Jurisdiction Of Tribal Courts Over Nonmember Indians, Nell Jessup Newton

Journal Articles

Throughout most of the history of federal Indian law, the United States Supreme Court has expressed extraordinary deference to Congress as the principal policymaker in Indian affairs, while often filling in gaps with imaginative characterizations of congressional intent or relying implicitly on its own power to create federal common law. Judicially articulated doctrines such as that of inherent tribal sovereignty have rightly been identified as providing the legal framework which has given conceptual stability to Indian law and influenced Congress to enact some of its more humane Indian legislation. But in more recent years the balance has switched; it is …

Federal Power Over Indians: Its Sources, Scope, And Limitations, Nell Jessup Newton

Journal Articles

Judicial deference to federal legislation affecting Indians is a theme that has persisted throughout the two-hundred-year history of American Indian law. The Supreme Court has sustained nearly every piece of federal legislation it has considered directly regulating Indian tribes, whether challenged as being beyond federal power or within that power but violating individual rights.' This judicial deference often has been justified by invoking federal plenary power to regulate Indian affairs and the political question doctrine's requirement of deference to the political branches. Indeed, not until 1977 did the Court explicitly repudiate use of the political question doctrine to bar equal …

Enforcing The Federal-Indian Trust Relationship After Mitchell, Nell Jessup Newton

Journal Articles

The Mitchell decision has been criticized appropriately as breaking with precedent on both Court of Claims jurisdiction and Indian trust law. Assuming this break with tradition was intentional, however, this article will focus on Mitchell's effects on breach of trust litigation in the Court of Claims and the federal district courts. To provide an understanding of the state of the law at the time Mitchell was decided, the article begins with a discussion of the influential breach of trust cases decided before Mitchell. Next, Justice Marshall's analysis in the majority opinion will be examined in fuller detail. The article will …

At The Whim Of The Sovereign: Aboriginal Title Reconsidered, Nell Jessup Newton

Journal Articles

Justice Reed, writing for the majority of the United States Supreme Court in Tee-Hit-Ton Indians v. United States, asserted the view: "Every American schoolboy knows that the savage tribes of this continent were deprived of their ancestral ranges by force and that, even when the Indians ceded millions of acres by treaty . . . it was not a sale but the conquerors' will that deprived them of their land."

Justice Reed's historical observation was a predicate to the Supreme Court's holding in Tee-Hit-Ton, one of the most significant statements by the Court on the constitutional rights of Native Americans …

Indian Tribal Trust Funds, Nell Jessup Newton

Journal Articles

The United States government has long managed most Indian tribal money. Frequently, however, the government's failure to make sound investment decisions has resulted in substantial losses to the tribes. Such losses have been difficult to redress, for there is still uncertainty concerning the standard of care to which the government must be held in managing these funds. Although the courts have borrowed terms from trust law in characterizing the government's position, its responsibilities have never been clearly delineated. Attempts by Indian tribes to clarify the relationship through litigation have been hindered by the fact that access to the courts was …