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Full-Text Articles in Law

Icwa’S Irony, Marcia A. Yablon-Zug Jan 2021

Icwa’S Irony, Marcia A. Yablon-Zug

Faculty Publications

The Indian Child Welfare Act (ICWA) is a federal statute that protects Indian children by keeping them connected to their families and culture. The Act’s provisions include support for family reunification, kinship care preferences, cultural competency considerations and community involvement. These provisions parallel national child welfare policies. Nevertheless, the Act is relentlessly attacked as a law that singles out Indian children for unique and harmful treatment. This is untrue but, ironically, it will be if challenges to the ICWA are successful. To prevent this from occurring, the defense of the Act needs to change. For too long, this defense ...


Fraying The Knot: Marital Property, Probate, And Practical Problems With Tribal Bans, Suzianne D. Painter-Thorne Apr 2020

Fraying The Knot: Marital Property, Probate, And Practical Problems With Tribal Bans, Suzianne D. Painter-Thorne

Faculty Publications

In the summer of 2015, marriage equality advocates celebrated the Supreme Court’s decision in Obergefell v. Hodges, which struck down state prohibitions on same-sex marriage.The Court found that “[t]he right of same-sex couples to marry . . . is part of the liberty promised by the Fourteenth Amendment.” Two years earlier, the Court had struck down parts of the federal Defense of Marriage Act (DOMA), finding that the federal government could not discriminate against same-sex married partners. With these two decisions, the Court ensured that the marriages of same-sex couples would be recognized by the federal government and in all ...


Icwa International: The Benefits And Dangers Of Enacting Icwa-Type Legislation In Non-U.S. Jurisdictions, Marcia A. Yablon-Zug Feb 2020

Icwa International: The Benefits And Dangers Of Enacting Icwa-Type Legislation In Non-U.S. Jurisdictions, Marcia A. Yablon-Zug

Faculty Publications

For decades, the Indian Child Welfare Act (ICWA) has been considered the “gold standard” in Indigenous child protection. As a result, Indigenous advocates around the world have sought the passage of similar legislation. However, it is far from clear that the benefits of the ICWA are easily exported. The ICWA is based on a recognition of tribal sovereignty. Unfortunately, many of the countries that could benefit from ICWA-type protections do not recognize the sovereignty of their Indigenous populations.

This Article explores how the ICWA would have to be adapted to work in such countries and whether the needed changes would ...


Traditional Ecological Knowledge In Environmental Decisionmaking, Anthony Moffa Jan 2019

Traditional Ecological Knowledge In Environmental Decisionmaking, Anthony Moffa

Faculty Publications

Traditional ecological knowledge (TEK) is defined as a deep understanding of the environment developed by local communities and indigenous peoples over generations. In the United States, Canada, and around the world, indigenous peoples are increasingly advocating for incorporation of TEK into a range of environmental decisionmaking contexts, including natural resource and wildlife management, pollution standards, environmental and social planning, environmental impact assessment, and adaptation to climate change. On October 31, 2018, ELI hosted an expert panel on TEK, co-sponsored by the National Native American Bar Association and the American Bar Association Section of Environment, Energy, and Resources. The panel discussed ...


Traditional Problems: Gay Marriage And The Backlash Against Indian Sovereignty, Marcia A. Yablon-Zug Jan 2017

Traditional Problems: Gay Marriage And The Backlash Against Indian Sovereignty, Marcia A. Yablon-Zug

Faculty Publications

No abstract provided.


Traditional Ecological Rulemaking, Anthony Moffa Jan 2016

Traditional Ecological Rulemaking, Anthony Moffa

Faculty Publications

This Article examines the implications of an increased role for Traditional Ecological Knowledge (TEK) in United States agency decisionmaking. Specifically, it contemplates where TEK might substantively and procedurally fit and, most importantly, whether a final agency action based on TEK would survive judicial scrutiny. In the midst of a growing body of scholarship questioning the wisdom of deference to agency expertise9 and the legitimacy of the administrative state writ large,10 this Article argues that there remains an important space in administrative rulemaking for the consideration of ways of understanding that differ from traditional Western norms. TEK can and should ...


The Real Impact Of Adoptive Couple V. Baby Girl: The Existing Indian Family Doctrine Is Not Affirmed But The Future Of Icwa's Placement Preferences Is Jeopardized, Marcia A. Yablon-Zug Apr 2014

The Real Impact Of Adoptive Couple V. Baby Girl: The Existing Indian Family Doctrine Is Not Affirmed But The Future Of Icwa's Placement Preferences Is Jeopardized, Marcia A. Yablon-Zug

Faculty Publications

On July 3, 2013, Dusten Brown and his wife Robin, and Brown’s parents, Tommy and Alice Brown, both filed actions to adopt "Baby Veronica", the four-year-old girl at the heart of the U.S. Supreme Court’s recent decision in Adoptive Couple v. Baby Girl. The Browns’ adoption petitions were based on the assumption that the Baby Girl Court did not affirm "The Existing Indian Family Doctrine," a doctrine which limits application of The Indian Child Welfare Act (ICWA) solely to children previously in the care or custody of an Indian relative. The Browns believed ICWA’s placement preferences ...


A Strange Kind Of Identity Theft: How Competing Definitions Of "Indian" May Deny Individual Identity, Suzianne D. Painter-Thorne Jan 2014

A Strange Kind Of Identity Theft: How Competing Definitions Of "Indian" May Deny Individual Identity, Suzianne D. Painter-Thorne

Faculty Publications

To the extent we think about it all, most of us believe what our parents tell us about where we came from-about who our grandparents are, who our ancestors were, our ethnic background, our family histories. My own family story includes claims to Scottish, Irish, French, and English ancestry. It also includes the Cherokee great-grandmother so popular in American genealogical stories. I have not undertaken an extensive genealogical search to more accurately pinpoint the threads of my ancestral quilt; I have simply accepted the family lore without much thought to whether it was verifiable.

My family's claimed link to ...


Criminal Justice In Indian Country, M. Alexander Pearl Jan 2014

Criminal Justice In Indian Country, M. Alexander Pearl

Faculty Publications

This Article examines the role played by different enacted legislation on California’s Indian tribes criminal justice system. For centuries, tribal governments were the only entities with criminal jurisdiction in Indian Country. In 1883, the Supreme Court in Ex parte Kan-Gi-Shun-Ka (Ex parte Crow Dog) confirmed that a crime committed by an Indian against another Indian did not give rise to federal jurisdiction. In response, Congress passed the Major Crimes Act, granting federal authorities the power to investigate, enforce, and prosecute certain crimes occurring in Indian Country. The federal statutes creating federal jurisdiction did not preclude tribal jurisdiction, but states ...


Adopted Couple V. Baby Girl: Erasing The Last Vestigates Of Human Property, James G. Dwyer Jul 2013

Adopted Couple V. Baby Girl: Erasing The Last Vestigates Of Human Property, James G. Dwyer

Faculty Publications

No abstract provided.


Tangled Up In Knots: How Continued Federal Jurisdiction Over Sexual Predators On Indian Reservations Hobbles Effective Law Enforcement To The Detriment Of Indian Women, Suzianne D. Painter-Thorne Jan 2011

Tangled Up In Knots: How Continued Federal Jurisdiction Over Sexual Predators On Indian Reservations Hobbles Effective Law Enforcement To The Detriment Of Indian Women, Suzianne D. Painter-Thorne

Faculty Publications

Consequently, tribal lands have become safe havens for sexual predators, who can commit their offenses with little fear of prosecution. As Fort Peck Tribal Chairman A.T. “Rusty” Stafne explained, “Our people are afraid because there are persons committing crimes against us at night and in broad daylight....We have criminals that are simply unafraid of prosecution.” Indeed, “[t]o a sexual predator, the failure to prosecute sex crimes against American Indian women is an invitation to prey with impunity.”

Congress has responded to the epidemic of reservation crime with the Tribal Law and Order Act27 (TLOA). But, as this ...


Indian Law: Dangerous Gamble: Child Support, Casino Dividends, And The Fate Of The Indian Family, Marcia A. Yablon-Zug Jan 2010

Indian Law: Dangerous Gamble: Child Support, Casino Dividends, And The Fate Of The Indian Family, Marcia A. Yablon-Zug

Faculty Publications

No abstract provided.


If You Build It, They Will Come: Preserving Tribal Sovereignty In The Face Of Indian Casinos & The New Premium On Tribal Membership, Suzianne Painter-Thorne Jan 2010

If You Build It, They Will Come: Preserving Tribal Sovereignty In The Face Of Indian Casinos & The New Premium On Tribal Membership, Suzianne Painter-Thorne

Faculty Publications

This Article considers recent disputes over membership decisions made by American Indian tribal governments. Since Congress passed the Indian Gaming Regulatory Act in 1988, Indian casinos have flourished on some tribal reservations. Some argue that the new wealth brought by casinos has increased fights over membership as tribes seek to expel current members or refuse to admit new members. It is difficult to discern whether there are more disputes over tribal enrollment as a consequence of gaming or whether such disputes are now more public because gaming has brought tribes to the forefront of U.S. culture. What is clear ...


The "Middle Ground" Perspective On The Expropriation Of Indian Lands, Eric Kades Jul 2008

The "Middle Ground" Perspective On The Expropriation Of Indian Lands, Eric Kades

Faculty Publications

No abstract provided.


Gone But Not Forgotten: The Strange Afterlife Of The Jay Treaty's Indian Free Passage Right, Marcia A. Yablon-Zug Apr 2008

Gone But Not Forgotten: The Strange Afterlife Of The Jay Treaty's Indian Free Passage Right, Marcia A. Yablon-Zug

Faculty Publications

No abstract provided.


Taxation And Doing Business In Indian Country, Erik M. Jensen Jan 2008

Taxation And Doing Business In Indian Country, Erik M. Jensen

Faculty Publications

Furthering investment in Indian country (a term that includes, but is not limited to, reservations) is an important goal, but potential investors are hesitant - and with reason. One disincentive to invest is uncertainty about tax liability. Understanding taxation in Indian country requires knowledge not only of traditional tax law, but also of American Indian law principles dating from the early nineteenth century, and not many practitioners are up to that task. This article tries to make sense, as much as is possible, of the doctrines that have developed over the centuries.

The article first discusses some basics: the concept of ...


Indian Gaming On Newly Acquired Lands, Erik M. Jensen Jan 2008

Indian Gaming On Newly Acquired Lands, Erik M. Jensen

Faculty Publications

This symposium article examines the meaning of the term Indian lands - the lands that might become sites for Indian gaming-in the Indian Gaming Regulatory Act of 1988. At its core, the term is unambiguous: it includes reservations and other lands that, at the time of IGRA's enactment, were held in trust by the United States for the benefit of American Indian nations. But Indian lands can include much more. Indeed, it is possible for real estate having only the most tenuous historical connections with a tribe (perhaps having no connections at all) to become Indian lands. The treatment of ...


A Uniform Probate Code For Indian Country At Last, David M. English Mar 2006

A Uniform Probate Code For Indian Country At Last, David M. English

Faculty Publications

AIPRA makes major reforms to the Indian probate system. Federal law long provided that trust or restricted lands and IlM accounts owned by an Indian intestate are to be distributed to the heirs as determined under state law. AIPRA replaces this with one uniform intestacy scheme for the distribution of trust lands and IJIM accounts in lieu of the 30-plus state systems that now apply. AIPRA also fills out the federal law on wills, enacting numerous provisions on the interpretation of wills, most adapted from the Uniform Probate Code. In addition to providing Indian country with a uniform and more ...


Chickasaw Nation: Interpreting A Broken Statute, Erik M. Jensen Feb 2006

Chickasaw Nation: Interpreting A Broken Statute, Erik M. Jensen

Faculty Publications

This report discusses the Supreme Court's 2001 decision in Chickasaw Nation v. United States, in which the Supreme Court interpreted a provision of the Indian Gaming Regulatory Act that contained contradictory phrases - one suggesting that Indian tribes were exempt from some occupational and excise taxes and one suggesting the contrary. The statute on its face made no sense, and the legislative history was of little help in resolving the ambiguity. Although the statute was clearly broken, the Court concluded that no ambiguity existed and that Congress did not intend to exempt tribes from those various wagering taxes. The author ...


American Indian Tribes And Secession, Erik M. Jensen Jan 2006

American Indian Tribes And Secession, Erik M. Jensen

Faculty Publications

Critics of American Indian law have often complained about federal interference in the internal affairs of American Indian nations. The author ponders how independent the critics really want American Indian nations to be and whether secession theory might help us think about the theory and practice of really independent American Indian nations.


Monroe G. Mckay And American Indian Law: In Honor Of Judge Mckay’S Tenth Anniversary On The Federal Bench, Erik M. Jensen Jan 2006

Monroe G. Mckay And American Indian Law: In Honor Of Judge Mckay’S Tenth Anniversary On The Federal Bench, Erik M. Jensen

Faculty Publications

This essay, written in honor of Judge Monroe G. McKay's tenth anniversary as a member of the United States Court of Appeals for the Tenth Circuit, considers the difficulty of justifying a separatist policy for the American Indian; examines the opinions authored by Judge McKay in American Indian law cases; and discusses the McKay opinions and the issue of separation.


Property Rights And Sacred Sites: Federal Regulatory Responses To American Indian Religious Claims On Public Land, Marcia A. Yablon-Zug May 2004

Property Rights And Sacred Sites: Federal Regulatory Responses To American Indian Religious Claims On Public Land, Marcia A. Yablon-Zug

Faculty Publications

No abstract provided.


Doing Business In Indian Country: Introduction To American Indian Law Concepts Affecting Taxation, Erik M. Jensen Jan 2003

Doing Business In Indian Country: Introduction To American Indian Law Concepts Affecting Taxation, Erik M. Jensen

Faculty Publications

This article describes some of the issues that will affect whether national, state, and tribal governments can tax investors who do business, or who invest in doing business, within Indian country (a term generally meaning American Indian reservations, although it can be broader than that).

Absent treaty language or express statutory language to the contrary, tribal members are subject to federal taxes of general application, such as the income tax. The Internal Revenue Code does contain some specific provisions exempting certain sorts of income, such as that from fishing-rights related activities, from taxation. In general, nonmembers of a tribe who ...


History And Interpretation Of The Great Case Of Johnson V. M'Intosh, Eric Kades Apr 2001

History And Interpretation Of The Great Case Of Johnson V. M'Intosh, Eric Kades

Faculty Publications

No abstract provided.


The Dark Side Of Efficiency: Johnson V. M'Intosh And The Expropriation Of Amerindian Lands, Eric Kades Jan 2000

The Dark Side Of Efficiency: Johnson V. M'Intosh And The Expropriation Of Amerindian Lands, Eric Kades

Faculty Publications

No abstract provided.


The Continuing Vitality Of Tribal Sovereignty Under The Constitution, Erik M. Jensen Jan 1999

The Continuing Vitality Of Tribal Sovereignty Under The Constitution, Erik M. Jensen

Faculty Publications

This article discusses James A. Porres III's essay, The Constitution of the United States Applies to Indian Tribes.


American Indian Law Meets The Internal Revenue Code: Warbus V. Commissioner, Erik M. Jensen Jan 1998

American Indian Law Meets The Internal Revenue Code: Warbus V. Commissioner, Erik M. Jensen

Faculty Publications

This article examines a 1998 Tax Court decision, Warbus v. Commissioner, that has implications for both American Indian law and federal tax law. Section 7873 of the Internal Revenue Code exempts from taxation amounts derived by American Indian tribal members from fishing-rights related activit[ies] of their tribes. Taxpayer Warbus claimed that discharge of indebtedness income from the foreclosure of his fishing boat qualified for the exclusion; the Tax Court said no. The author argues that Warbus was wrongly decided for two reasons: the court failed to take account of basic principles of American Indian law, and the court misapplied ...


American Indian Tribes And 401(K) Plans, Erik M. Jensen Jan 1995

American Indian Tribes And 401(K) Plans, Erik M. Jensen

Faculty Publications

No abstract provided.