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Full-Text Articles in Law

Textualism’S Gaze, Matthew L.M. Fletcher Sep 2020

Textualism’S Gaze, Matthew L.M. Fletcher

Michigan Journal of Race and Law

This Article attempts to address why textualism distorts the Supreme Court’s jurisprudence in Indian law. I start with describing textualism in federal public law. I focus on textualism as described by Justice Scalia, as well as Scalia’s justification for textualism and discussion about the role of the judiciary in interpreting texts. The Court is often subject to challenges to its legitimacy rooted in its role as legal interpreter that textualism is designed to combat.


Examining The Administrative Unworkability Of Final Agency Action Doctrine As Applied To The Native American Graves Protection And Repatriation Act, Adam Gerken May 2019

Examining The Administrative Unworkability Of Final Agency Action Doctrine As Applied To The Native American Graves Protection And Repatriation Act, Adam Gerken

Michigan Journal of Environmental & Administrative Law

The application of the Administrative Procedure Act (“APA”) to the Native American Graves Protection and Repatriation Act (“NAGPRA”) creates unique practical and doctrinal results. When considering the application of the current law concerning judicial review of final agency action under the APA to NAGPRA, it is evident that the law is simultaneously arbitrary and unclear. In the Ninth Circuit’s holding in Navajo Nation v. U.S. Department of the Interior, the Court applied final agency action doctrine in a manner that was legally correct but administratively unworkable. The Court’s opinion contravenes both the reasoning behind the APA final agency action …


When Indian Law And Tax Law Collide: How Pull-Tab Games Got To The Supreme Court , John Burgess Jan 2001

When Indian Law And Tax Law Collide: How Pull-Tab Games Got To The Supreme Court , John Burgess

Cleveland State Law Review

This Note will explore the reasons why two identical cases can turn out with completely different results. To do so, consideration will be given to the statutes involved and the varying interpretations of these statutes. Another important consideration is the policy behind these statutes, especially the IGRA. Part II will describe what the pull-tab games are, the statutes at issue, the conflicting cases, and the statutory interpretation issue. Part III will describe how the tenets of Indian Law can affect the analysis. Part IV will contain an analysis of the statutes and compare it to how the courts analyzed them. …


The Legend Of "Crow Dog:" An Examination Of Jurisdiction Over Intra-Tribal Crimes Not Covered By The Major Crimes Act, James W. King Oct 1999

The Legend Of "Crow Dog:" An Examination Of Jurisdiction Over Intra-Tribal Crimes Not Covered By The Major Crimes Act, James W. King

Vanderbilt Law Review

Native American tribes present unique problems to American jurisprudence and governance. Unquestionably subject to federal control on some levels, they have maintained the "inherent powers of a limited sovereignty" over internal affairs.' While both the Supreme Court and Congress have recognized this sovereignty, specific Congressional mandate can abrogate it at any time. This Note addresses the question of whether Congress has mandated federal jurisdiction over all serious crimes committed by Indians against other Indians on tribal land.

The story is long and complicated, with its beginnings in the 1883 Supreme Court case Ex parte Crow Dog, in which the Court …


Interpreting Indian Country In State Of Alaska V. Native Village Of Venetie, Kristen A. Carpenter Jan 1999

Interpreting Indian Country In State Of Alaska V. Native Village Of Venetie, Kristen A. Carpenter

Publications

According to federal Indian law's canons of construction, statutes enacted for the benefit of American Indians and Alaska Natives must be liberally interpreted in their favor. But a doctrine of statutory interpretation presently challenges certain applications of the Indian canons. Announced by the Supreme Court in Chevron, U.S.A. v. Natural Resources Defense Council, Inc., the doctrine requires that courts defer to administrative agency interpretations of ambiguous language in statutes they are authorized to administer. In instances where agencies construe statutes against Indian interests, Chevron deference and the Indian canons dictate opposite results for a reviewing court. This conflict muddles Indian …


Legitimation And Statutory Interpretation: Conquest, Consent, And Community In Federal Indian Law, David C. Williams Jan 1994

Legitimation And Statutory Interpretation: Conquest, Consent, And Community In Federal Indian Law, David C. Williams

Articles by Maurer Faculty

No abstract provided.


A Proposal For Extension Of The Occupational Safety And Health Act To Indian-Owned Businesses On Reservations, Maureen M. Crough Jan 1985

A Proposal For Extension Of The Occupational Safety And Health Act To Indian-Owned Businesses On Reservations, Maureen M. Crough

University of Michigan Journal of Law Reform

This Note argues that the Act does not apply to Indian businesses because it does not specifically mention them. While sensitive to the desirability of providing certain kinds of federal protections to all Americans, this Note takes the position that the sovereignty of Indian tribes should not be abrogable except by considered and express congressional action. Concluding nonetheless that the workplace protection the Occupational Safety and Health Act provides should be extended to Indians on reservations, the Note proposes amendment of the Act: to extend its protection; to permit tribal enforcement; and to authorize the federal government to help financially …


The Canons Of Indian Treaty And Statutory Construction: A Proposal For Codification, Jill De La Hunt Apr 1984

The Canons Of Indian Treaty And Statutory Construction: A Proposal For Codification, Jill De La Hunt

University of Michigan Journal of Law Reform

This Note argues that the canons of construction should play a central role in the interpretation of Indian treaties and statutes. The Note proposes revitalization of the canons through congressional action codifying the rules of construction into federal law. Part I traces the historical development of the canons to further the federal-Indian trust relationship. Part II analyzes recent Supreme Court decisions that demonstrate decreased use of the canons. Part III argues that strong canons of construction are necessary to the development of self-determining Indian tribes and proposes federal legislation to ensure the continued vitality and importance of the canons of …


Implication Of Civil Remedies Under The Indian Civil Rights Act, Michigan Law Review Nov 1976

Implication Of Civil Remedies Under The Indian Civil Rights Act, Michigan Law Review

Michigan Law Review

This Note will discuss neither -the wisdom of the express provisions of ICRA nor the desirability of express creation by Congress of a federal civil remedy. The purpose of this Note is, instead, to analyze the bases upon which remedies have been implied by federal courts and to question whether implication is consistent with standards of statutory interpretation appropriate for Indian law. It is contended that the implication of federal civil remedies against Indian governments is improper and that if such remedies are to be created, precedent and policy mandate that they be the product of Congress. The Note will …