Law Commons^™

Public Safety And Criminal Justice, Kevin Washburn

Faculty Scholarship

Conference Transcript from The New Realism: The Next Generation of Scholarship in Federal Indian Law

Testimony On The Regulation Of Indian Gaming, Oversight Hearing On The [Nigc] Minimum Internal Control Standards, Before The United States House Of Representatives, Committee On Resources, 109th Congress, 2nd Session, Kevin Washburn

Faculty Scholarship

State governments have an inherent conflict of interest in the regulation of Indian gaming. Strict regulation of Indian gaming can be good for the long term health of the industry, but may impact short term revenues. States have a strong short term interest in maximizing gaming revenue. Tribal governments should bear the primary responsibility for regulating Indian gaming. However, tribal regulators also have a weakness, namely, a myopia to the interests of other tribes and the national interests of the Indian gaming industry. Federal regulators can best protect the integrity of the industry nationally and ought to have a strong …

Implicit Divestiture Reconsidered: Outtakes From The Cohen's Handbook Cutting-Room Floor, John P. Lavelle

Faculty Scholarship

The most dramatic development in the field of Indian law during the years between publication of the 1982 and 2005 editions of Cohen's Handbook of Federal Indian Law has been the Supreme Court's reliance on a judicially devised theory for denying the inherent sovereign governing authority of Indian nations in cases where Congress has not acted to divest tribes of this authority. The executive committee of the board of authors and editors for the 2005 revision of Cohen's Handbook recognized the importance of discussing this recent line of cases in-depth and entrusted me with the task of preparing the draft. …

Lions And Tigers And Bears, Oh My Or Redskins And Braves And Indians, Oh Why: Ruminations On Mcbride V. Utah State Tax Commission, Political Correctness And The Reasonable Person, André Douglas Pond Cummings

Faculty Scholarship

American Indian mascots have been used by High Schools, Colleges and Professional sports teams for decades. Such use of monikers and mascots that depict Native American images and stereotypes have come under intense criticism in the past decade. Despite the outcry, a few professional sports teams and major Division I institutions continue to stubbornly persist in using derogatory and offensive nicknames and stereotypes for their athletic competitors.

This article urges those stubborn institutions and professional sports teams to reconsider the use of names and monikers that demean and disparage. By reconsidering the reasonable person standard, examining recent caselaw, and discussing …

When The State Bar Exam Embraces Indian Law: Teaching Experiences And Observations, Gloria Valencia-Weber, Sherri Nicole Thomas

Faculty Scholarship

In 2002, New Mexico became the first state to place Indian law on the state bar exam. This decision made basic knowledge of Indian law part of the competency expected of all licensed attorneys. This result arose from the University of New Mexico School of Law's (UNM) significant role as the only law school in the state. In combination with the social and political history of the state these elements produced this historic result. This paper outlines the history of Indian law at UNM and discusses the formal process that placed Indian law on the state's bar exam. The discussion …

Toward A Pedagogy And Ethic Of Law/Lawyering For Indigenous Peoples, Christine Zuni Cruz

Faculty Scholarship

This article is prefaced with a reflection on Indigenous Peoples in the legal profession which leads into a discussion on the pedagogy and preparation of Indigneous students in law. It addresses the current pedagogy employed in training indigenous students in law and proposes a reframing of this preparation by including and employing an indigenous perspective and intellectual tradition of leadership. It considers the relationship of the Indian law academician with indigenous justice systems. The article addresses the influence on pedagogy that emerges from the Indigenous legal tradition, and the importance of incorporating these influences into the education and preparation of …

American Indians, Crime, And The Law, Kevin Washburn

Faculty Scholarship

This Article evaluates the federal Indian country criminal justice regime, not against norms of Indian law and policy, but against those of criminal law and policy. Specifically, this Article evaluates the federal constitutional norms that lie at the heart of American criminal justice and that are designed to ensure the legitimacy of federal criminal trials. Toward that end, Part I presents a critical description of key facets of the federal Indian country criminal justice system. Part II begins the critical evaluation by evaluating a key institutional player in the federal system, the federal prosecutor. It highlights the handicaps faced by …

Federal Criminal Law And Tribal Self-Determination, Kevin Washburn

Faculty Scholarship

Under the rubric of "tribal self-determination," federal policymakers have shifted federal governmental power and control to tribal governments in nearly all areas of Indian policy. Normatively, this shift reflects an enlightened view about the role of Indian tribes in Indian policy. As a practical matter, it has also improved services to Indians on reservations by placing functions with tribal service providers who are more knowledgeable and more accountable than their federal counterparts. Despite broad adoption of self-determination as the dominant federal policy, felony criminal justice on Indian reservations has remained an exclusive federal function, and a highly ineffective enterprise, according …

Tribal Self-Determination At The Crossroads, Kevin Washburn

Faculty Scholarship

The tribal self-determination initiative that began transforming federal Indian policy thirty years ago has reached a crossroads. Despite its transformative effects on tribal governments and the widespread belief that self-determination has been a successful federal approach to Indian affairs, no significant new self-determination program has been initiated at the congressional level in several years. This Article looks to the tribal self-determination initiative's past to gain insights about its future. It also briefly surveys existing tribal self-determination programs and concludes that far more work needs to be done to achieve tribal self-determination. Drawing on the author's broader work, it finds one …

Creating A Tribal Law Practice Clinic In Kansas: Carving The Peg To Fit The Hole, Aliza Organick

Faculty Scholarship

This article will focus on three main challenges in creating a tribal court practice clinic. The first part will address creating a tribal court focus within an existing clinic curriculum. The second part will address the process of designing a curriculum for the TCPC that includes incorporating the basic doctrinal foundations of federal Indian law, as well as the clinical skills necessary to practice in a tribal court setting. The third part will offer some concluding thoughts on my long-term plans and dreams for TCPC.