Administrative Law Commons^™

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.
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/="/">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 …

"At Bears Ears We Can Hear The Voices Of Our Ancestors In Every Canyon And On Every Mesa Top": The Creation Of The First Native National Monument, Charles Wilkinson

Publications

No abstract provided.

United States V. Osage Wind, Llc, Summer Carmack

Public Land & Resources Law Review

The Osage Nation, as owner of the beneficial interest in its mineral estate, issues federally-approved leases to persons and entities who wish to conduct mineral development on its lands. After an energy-development company, Osage Wind, leased privately-owned surface lands within Tribal reservation boundaries and began to excavate minerals for purposes of constructing a wind farm, the United States brought suit on the Tribe’s behalf. In the ensuing litigation, the Osage Nation insisted that Osage Wind should have obtained a mineral lease from the Tribe before beginning its work. In its decision, the Tenth Circuit applied one of the Indian law …

Case Law On American Indians: August 2015—August 2016, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

We Need Protection From Our Protectors: The Nature, Issues, And Future Of The Federal Trust Responsibility To Indians, Daniel I.S.J. Rey-Bear, Matthew L.M. Fletcher

Michigan Journal of Environmental & Administrative Law

The federal trust responsibility to Indians essentially entails duties of good faith, loyalty, and protection. While often thought of as unique to federal Indian policy, it developed from and reflects common law principles of contracts, property, trusts, foreign relations/international law, and constitutional law. However, several issues preclude a greater understanding and implementation of the federal trust responsibility. These include Executive Branch efforts to avoid liability, neocolonial judicial activism, and episodic congressional attention. Enactment of legislation to reaffirm and modernize the federal trust responsibility through greater self-determination, integration, elevation, oversight, and funding should help overcome these issues to improve federal Indian …

San Manuel'S Second Exception: Identifying Treaty Provisions That Support Tribal Labor Sovereignty, Briana Green

Michigan Journal of Environmental & Administrative Law

Inspired by the holding in WinStar World Casino, this Note considers the potential for tribes to make treaty-based arguments when facing the threat of National Labor Relations Board jurisdiction. This Note presents the results of a survey of U.S. government treaties with Native Americans to identify those treaties with language similar to that interpreted by the Board in WinStar World Casino. The survey identified four treaties and four tribes that could make treaty-based arguments like those made in Winstar World Casino: the Confederated Tribes of the Umatilla Indian Reservation, the Muscogee (Creek) Nation, the Seminole Nation of …

Exploring Alternatives To The "Consultation Or Consent" Paradigm, Jason Searle

Michigan Journal of Environmental & Administrative Law

The Dakota Access Pipeline brought the question of what adequate tribal consultation requires to the forefront. Some would argue that consultation is a weak standard and that only adopting a new standard of free, prior, and informed consent can guarantee tribes greater control and respect. However, the “consultation or consent” paradigm does not take into account important sources of law that do not fit under “consultation” or “consent” and yet could be valuable in strengthening tribes’ claims in the absence of a consent standard.

Whose Standards Control? Maine V. Mccanhy And The Federal, State, And Tribal Battle Over Water Quality Regulation, Joseph Paul Mortelliti

Michigan Journal of Environmental & Administrative Law

This Note considers the longstanding clash between the United States government and state governments over the management of intrastate waters through the lens of Maine v. McCarthy, an ongoing federal lawsuit. McCarthy confronts whether the United States Environmental Protection Agency can require state water quality standards to specifically safeguard the health and cultural practices of Maine’s Indian tribes, particularly sustenance fishing. A panoply of legal and political factors gave rise to and shaped the course of the litigation, ranging from tribal sovereignty to agency discretion and political gamesmanship. After evaluating the litigants’ arguments and examining previous regulatory collisions between …

Legacy In Paradise: Analyzing The Obama Administration’S Efforts Of Reconciliation With Native Hawaiians, Troy J.H. Andrade

Michigan Journal of Race and Law

This Article analyzes President Barack Obama’s legacy for an indigenous people—nearly 125 years in the making—and how that legacy is now in considerable jeopardy with the election of Donald J. Trump. This Article is the first to specifically critique the hallmark of Obama’s reconciliatory legacy for Native Hawaiians: an administrative rule that establishes a process in which the United States would reestablish a government-to-government relationship with Native Hawaiians, the only indigenous people in America without a path toward federal recognition. In the Article, Obama’s rule—an attempt to provide Native Hawaiians with recognition and greater control over their own affairs to …

Standing Rock Sioux Tribe V. U.S. Army Corps Of Engineers, Jody D. Lowenstein

Public Land & Resources Law Review

The Standing Rock Sioux’s effort to enjoin the U.S. Army Corps of Engineers’ permitting of an oil pipeline was stifled by the United States District Court of the District of Columbia. In denying the preliminary injunction, the court held that the Tribe failed to show that the Corps violated the National Historic Preservation Act, and that the Tribe’s belated effort to litigate was futile after failing to participate in the consultation process.

Pueblo Indian Water Rights: Charting The Unknown, Richard W. Hughes

Publications

This article examines the so-far-unsuccessful efforts to judicially define and quantify the water rights appurtenant to the core land holdings of the 19 New Mexico Pueblos, many of whose lands straddle the Rio Grande. It explains that the Tenth Circuit Court of Appeals has squarely held that Pueblo water rights are governed by federal, not state law, and are prior to those of any non-Indian appropriator, but also that the Tenth Circuit acknowledged that it could not say how those rights should be characterized. Part I of the article examines the course of the cases that have sought to achieve …

Pursuing A Reconciliatory Administrative Law: Aboriginal Consultation And The National Energy Board, Matthew J. Hodgson

Osgoode Hall Law Journal

Environmental assessment within the process of regulatory review is recognized as the preferred means for carrying out the duty to consult and accommodate Aboriginal rights in administrative decisions over proposed resource development. Recent evidence suggests that integrating the duty to consult into National Energy Board (NEB) proceedings and subsuming the law of Aboriginal consultation under principles of administrative justice have not advanced the goal of reconciliation. This article considers whether the statutory mandate of the National Energy Board requires it to have sufficient regard to Aboriginal rights in a manner consistent with the adjudication of constitutional issues in administrative law. …

What Should Tribes Expect From Federal Regulations? The Bureau Of Land Management’S Fracking Rule And The Problems With Treating Indian And Federal Lands Identically, Monte Mills

Public Land & Resources Law Review

The federal government’s various Indian policies create a number of boundaries across which Indian tribes must negotiate to ensure successful management of their natural resources. For example, the removal, reservation, and treaty-making period of the late 18th and early 19th Centuries created territorial boundaries that, for many tribes, did not align with their traditional homelands. Thereafter, allotment of many of the resulting tribal reservations decimated the tribal land base and left a checkerboard ownership pattern of land within many reservations. More recent decisions of the United States Supreme Court have limited tribal authority over the non-Indian owned squares on the …

Tribal Management Under The Mmpa: A Way Forward For Local Control, Julie Lurman Joly

American Indian Law Journal

No abstract provided.

Prostitution Policy: Legalization, Decriminalization And The Nordic Model, Ane Mathieson, Easton Branam, Anya Noble

Seattle Journal for Social Justice

No abstract provided.

Don’T Risk It; Wait Until She’S Sober, Patrick John White

Seattle Journal for Social Justice

No abstract provided.

Let’S Talk About Sex: A Call For Guardianship Reform In Washington State, Sage Graves

Seattle Journal for Social Justice

No abstract provided.

Living Under The Boot: Militarization And Peaceful Protest, Charlotte Guerra

Seattle Journal for Social Justice

No abstract provided.

Let’S Invest In People, Not Prisons: How Washington State Should Address Its Ex-Offender Unemployment Rate, Sara Taboada

Seattle Journal for Social Justice

No abstract provided.

His Feminist Facade: The Neoliberal Co-Option Of The Feminist Movement, Anjilee Dodge, Myani Gilbert

Seattle Journal for Social Justice

No abstract provided.

In Her Words: Recognizing And Preventing Abusive Litigation Against Domestic Violence Survivors, David Ward

Seattle Journal for Social Justice

No abstract provided.

Mauna Kea Anaina Hou V. Board Of Land And Natural Resources, Wesley J. Furlong

Public Land & Resources Law Review

Native Hawaiians and the scientific community have been pitted against each other in a decades-long culture war over the construction of observatories and telescopes on sacred landscapes. In Mauna Kea Anaina Hou, the Hawai’i Supreme Court handed a victory to Native Hawaiian culture and rights by halting the construction of a new telescope on Mauna Kea. The decision must be read cautiously, however, as it is firmly rooted in the strict application of procedural due process.

Congress, Tribal Recognition, And Legislative-Administrative Multiplicity, Kirsten Matoy Carlson

Indiana Law Journal

Most descriptions of federal recognition by political scientists, anthropologists, and legal scholars focus on an administrative process run by the Office of Federal Acknowledgment (OFA) within the Bureau of Indian Affairs (BIA). To the extent that scholars discuss the role of Congress in recognizing Indian nations, they suggest that it plays a diminishing one. In fact, this misconception pervades the field. Most scholars assume that Congress has largely ceded control over the recognition of Indian nations to the BIA.

This discrepancy begs the question: Who has it right? Hollywood screenwriters or the academic experts? The answer to this question matters …

Practical Reasoning And The Application Of General Federal Regulatory Laws To Indian Nations, Alex T. Skibine

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

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 fill …

The Broad Implications Of The First Nation Caring Society Decision: Dealing A Death-Blow To The Current System Of Program Delivery On-Reserve & Clearing The Path To Self-Government, Naiomi Metallic

Articles, Book Chapters, & Popular Press

On January 26, 2016, the Canadian Human Rights Tribunal (the “Tribunal”) released a watershed decision in a complaint spearheaded by the First Nations Child and Family Caring Society of Canada, its Executive Director, Dr. Cindy Blackstock, and the Assembly of First Nations (the “Caring Society” decision). The complaint alleged that Canada, through its Department of Indigenous and Northern Affairs (“INAC” or the “Department”), discriminates against First Nations children and families in the provision of child welfare services on reserve. In its decision, the Tribunal found that INAC’s design, management and control of child welfare services on reserve, along with its …

Endangered Species, Endangered Treaties: Protecting Treaty Rights, Economic Development, And Tribal Consultation Under Secretarial Order 3206, Jeremy Wood

American Indian Law Journal

No abstract provided.

The Binding Guidance Principle: Using The Indian Trust Doctrine To Trump The Apa, John Robinson Jr., J.D.

American Indian Law Journal

No abstract provided.

Agdaagux Tribe Of King Cove V. Jewell, Taylor R. Thompson

Public Land & Resources Law Review

In a lengthy opinion by the Alaska District Court, the battle for a proposed medical emergency road through the Izembek National Refuge stalled. The court held that the Department of the Interior’s No Action Alternative blocked the construction of the road was decided in accordance within the Department’s authority. It is not the end of the battle over the road, as the court alluded that Congress may be able to change this decision.

Pit River Tribe V. Bureau Of Land Management, 793 F.3d 1147 (9th Cir. 2015), Kathryn S. Ore

Public Land & Resources Law Review

In Pit River Tribe v. Bureau of Land Management, the United States Court of Appeals for the Ninth Circuit explained the correct application of the zone of interests test and further solidified the importance of proper NEPA and NHPA analysis in geothermal leasing. The court reaffirmed that the BLM and the Forest Service must conduct additional cultural and environmental analysis when granting lease extensions under the Geothermal Steam Act. Furthermore, it rejected the BLM’s decision to grant forty-year lease continuations to unproven geothermal leases by treating them as a unit rather than individually.