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Full-Text Articles in Law
The Mechanics Of Indian Gaming Management Contract Approval, Kevin Washburn
The Mechanics Of Indian Gaming Management Contract Approval, Kevin Washburn
Faculty Scholarship
The National Indian Gaming Commission's management contract review process is complicated, time-consuming and governed by detailed regulations. This article explains how the process actually works within the Commission and addresses some of the common issues that arise.
Toward An Indigenous Jurisprudence Of Rape, Sarah Deer
Toward An Indigenous Jurisprudence Of Rape, Sarah Deer
Faculty Scholarship
This article sets forth some preliminary issues and perspectives for the development of indigenous models of rape jurisprudence. Part I examines the reasons for and importance of developing an indigenous jurisprudence of rape. Part II addresses tribal jurisdiction issues, particularly the current limitations on tribal authority. Part III provides a historical context for the issue, including examples of the role of colonization in the responses to sexual violence. Part IV shares some visions for the development of a contemporary jurisprudence of rape for indigenous nations.
Santa Clara Pueblo V. Martinez: Twenty-Five Years Of Disparate Cultural Visions An Essay Introducing The Case For Re-Argument Before The American Indian Nations Supreme Court, Gloria Valencia-Weber
Santa Clara Pueblo V. Martinez: Twenty-Five Years Of Disparate Cultural Visions An Essay Introducing The Case For Re-Argument Before The American Indian Nations Supreme Court, Gloria Valencia-Weber
Faculty Scholarship
Santa Clara Pueblo v. Martinez nakedly presents a conflict between the individual rights norm of equality and the communal or collective political right of the first sovereigns within U.S. borders. The conflict underlies the discourse in law scholarship and reflects disparate cultural visions between mainstream society and American Indians. In Indian law the decision has saliency with positive and negative force injected into different arenas besides equal protection, gender, and membership qualifications. It is a major fortification for the federally recognized tribal sovereigns to exclude external law and forums, the federal law and courts, in how tribes exercise self-government. The …
Racial Equality: Old And New Strains And American Indians, Gloria Valencia-Weber
Racial Equality: Old And New Strains And American Indians, Gloria Valencia-Weber
Faculty Scholarship
First, I will set the colonial context for equality that was anchored in a narrow white male model as the principal civic actor. Second, the discussion proceeds to the political status of American Indians, the basis for the nation-to-nation relations that secured in treaties the lands and resources that benefited non-Indians. Third, this Article explores the cultural difference between indigenous and constitutional visions of individual rights and community. Fourth, is a description of the efforts to remake Indians into a race and assimilate their governments into federalism. Fifth, this Article discusses the Santa Clara Pueblo v. Martinez case, which demonstrates …
A Legacy Of Public Law 280: Comparing And Contrasting Minnesota's New Rule For The Recognition Of Tribal Court Judgments With The Recent Arizona Rule, Kevin Washburn, Chloe Thompson
A Legacy Of Public Law 280: Comparing And Contrasting Minnesota's New Rule For The Recognition Of Tribal Court Judgments With The Recent Arizona Rule, Kevin Washburn, Chloe Thompson
Faculty Scholarship
This article will evaluate the Minnesota Rule by comparing and contrasting its development, as well as its substantive content, with the new Arizona Rules. Part II of this article will describe the Minnesota Rule and compare it to the Arizona Rules that shortly preceded it. Part III will describe the rulemaking processes that produced the Minnesota and Arizona Rules and seek to provide insight into how Minnesota reached such a markedly different result than Arizona. Part III will also mine the insights from these processes and from other sources to offer some explanation as to why the Arizona Supreme Court …
Federal Law, State Policy, And Indian Gaming, Kevin Washburn
Federal Law, State Policy, And Indian Gaming, Kevin Washburn
Faculty Scholarship
This Article will set forth the legal authorization and the economic success of Indian gaming by asking and answering two rhetorical questions: "What makes Indian gaming lawful?" and "What makes Indian gaming successful?" This Article will conclude with the observation that Indian gaming exists almost entirely at the mercy of state governments. It will argue that, while Indian gaming began as a cross-border issue, it no longer has those features. Indeed, it has been transformed into the very antithesis of a cross-border issue, a political issue that is addressed almost entirely in the sphere of state political processes. The issue …
Lara, Lawrence, Supreme Court Litigation, And Lessons From Social Movements, Kevin Washburn
Lara, Lawrence, Supreme Court Litigation, And Lessons From Social Movements, Kevin Washburn
Faculty Scholarship
United States v. Lara was hailed as a victory for Indian tribes because it upheld tribal criminal jurisdiction over non-member Indians. Lawrence v. Texas was hailed as a victory for the gay rights movement because it upheld the due process right of gays to be protected from criminal prosecutions for consensual sexual acts done in private within their own homes. Despite dramatically different contexts, the two cases share a common thread: both are cases in which interested groups achieved important successes by marshalling broad support for their arguments at the briefing stage which helped pave the way for Supreme Court …
Tribal Courts And Federal Sentencing, Kevin Washburn
Tribal Courts And Federal Sentencing, Kevin Washburn
Faculty Scholarship
In light of the overwhelming acceptance of the norm of tribal self-governance in federal Indian policy, the Commission's decision not to credit the legitimate work of tribal courts in adjudicating misdemeanor sentences is surprising. This article critically evaluates this peculiar and unexplained policy. Part I describes the current federal policy toward tribal governments with particular emphasis on tribal courts and explains the role of tribal courts in the unique federal criminal justice regime that governs Indian country. Part II describes the Federal Sentencing Guidelines with particular attention to the provisions on criminal history. Part II also evaluates the Commission's current …
Petitioner's Brief - Reargument Of Oliphant V. Suquamish Indian Tribe, John P. Lavelle
Petitioner's Brief - Reargument Of Oliphant V. Suquamish Indian Tribe, John P. Lavelle
Faculty Scholarship
Does the Suquamish Indian Tribe possess inherent sovereign power to exercise criminal jurisdiction over non-Indians alleged to have committed misdemeanor crimes within the boundaries of the tribe's own reservation in violation of the Suquamish Law and Order Code?