Indigenous, Indian, and Aboriginal Law Commons^™

Environmental Defense Center V. Bureau Of Ocean Energy Management, Eliot M. Thompson

Public Land & Resources Law Review

The United States Court of Appeals for the Ninth Circuit upheld the district court’s grants of summary judgment and injunctive relief against BOEM for violating the ESA and CZMA. The Ninth Circuit found BOEM violated NEPA, CZMA, and the APA by failing to adequately consider the environmental impacts of well stimulation treatments. The Ninth Circuit also reversed the lower court’s grant of summary judgment against the Environmental Defense Center for their NEPA claims.

Metlakatla Indian Community V. Dunleavy, Elizabeth L. Orvis

Public Land & Resources Law Review

The United States Court of Appeals for the Ninth Circuit reversed the District Court of Alaska’s judgment that dismissed the Metlakatla Indian Community’s suit against Alaska’s limited entry program. On appeal, the Ninth Circuit addressed whether and to what extent the 1891 Act preserved an implied off-reservation fishing right for members of the Metlakatla Indian Community. The Ninth Circuit ruled in favor of the Metlakatla Indian Community but remanded to the district court to determine the boundaries of the traditional off-reservation fishing grounds. Motions for rehearing and rehearing en banc were denied.

Fishing And Fisheries Under International Water Law: A Dialogue Between Professor Gabriel Eckstein And Professor Paul Stanton Kibel, Gabriel Eckstein, Paul Stanton Kibel

Faculty Scholarship

On April 10 and 11, 2023, the Center on Urban Environmental Law (CUEL) at Golden Gate University School of Law hosted a two-day webinar on International Law Aspects of Fisheries and Hydropower in Europe. To open the webinar, Professor Gabriel Eckstein (of Texas A&M University School of Law) and Professor Paul Stanton Kibel (of Golden Gate University School of Law) participated in a keynote dialogue titled Fishing and Fisheries under International Water Law. What follows is a transcription of this dialogue between Professor Eckstein and Professor Kibel.

Ctr. For Biological Diversity V. United States Fish & Wildlife Serv., Ali Stapleton

Public Land & Resources Law Review

The Ninth Circuit Court of Appeals affirmed the District Court of Arizona’s decision to deny a proposed mining plan becuase the operations exceeded the boundaries of a valid mining claim. The issue the court addressed is whether a permanent occupancy of waste rock and tailings on land, absent the discovery of valuable minerals, is a reasonable use related to mining activities. The Ninth Circuit decision effectively prevented mining companies from amending the 1872 Mining Law on the administrative record. Motions for a rehearing and a rehearing en banc were denied.

Toward A Tribal Role In Groundwater Management, Alexandra Fay

American Indian Law Journal

This Article considers the Agua Caliente groundwater litigation a decade since its inception. It recounts the most recent developments in the case, notably the move to mediation and the strategic work that brought the water districts to the table. The Article places this monumental case in context: in the history of colonization and tribal-state relations, the present climate crisis, and the State of California’s groundwater management regime. The Article ultimately outlines the present opportunity to reimagine the role of tribes in groundwater management.

Case Law On American Indians, Thomas P. Schlosser

American Indian Law Journal

An update on American Indian case law from September 2021-October 2022.

Oil, Indifference, And Displacement: An Indigenous Community Submerged And Tribal Relocation In The 21st Century, Jared Munster

American Indian Law Journal

Coastal land loss driven by erosion and subsidence, and amplified by climate change, has forced the abandonment and resettlement of the remote Louisiana Indigenous community of Isle de Jean Charles. This relocation, to a relatively ‘safer’ site inland has led to division among the residents and will inevitably cause irreparable damage to the culture and traditions of the Houma and Biloxi Chitimacha Confederation of Muskogees peoples who called this small, isolated island home. Driven to the water’s edge by European colonization of south Louisiana, this community developed a dynamic subsistence lifestyle based on agriculture, hunting, and fishing which survived undisturbed …

Brief Of Tribal Nations And Indian Organizations As Amici Curiae In Support Of The Navajo Nation, U.S. Supreme Court Docket No. 21-1484, Monte Mills, Heather D. Whiteman Runs Him, Dylan R. Hedden-Nicely, John E. Echohawk, Steven C. Moore, David L. Gover, Joe M. Tenorio, Ada Montague Stepleton, Morgan E. Saunders, Wesley James Furlong, Sydney Tarzwell

Court Briefs

SUMMARY OF ARGUMENT: The Winters Doctrine recognizes and gives effect to the promises made by the United States in treaties, congressionally ratified agreements, and executive orders that Tribal Nations would retain permanent and viable homelands. These promises, made in exchange for the Tribal Nations’ cession of billions of acres of land, paved the way for the non-Indian settlement of the West. Although every tribal homeland is unique, invariably, each requires water to be livable. Applying the canons of construction this Court has developed as part of its federal Indian law jurisprudence, as well as the history and circumstances surrounding the …

Westerners Hung Out To Dry: A Review Of The Prior Appropriation Doctrine Amidst A Drying Climate And A Patchwork Of Water Claims, Madelyn M. Vandorpe

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Brief For Amici Curiae Prof. Daniel Mccool, Prof. Ezra Rosser And Prof. David E. Wilkins, In Support Of Respondents, Ezra Rosser, David E. Wilkins

Amicus Briefs & Court Filings

No abstract provided.

Solenex, Llc V. Haaland, Jennifer Kieffer Jensen

Public Land & Resources Law Review

In 1982, BLM issued an oil and gas lease in the Badger-Two Medicine to Solenex’s predecessor. The Badger-Two Medicine, located in the Lewis and Clark National Forest, is an area of cultural and spiritual importance to the Blackfeet Tribe. After four decades of disagreement as to whether the lease was validly issued, the Secretary of the Interior found that the lease violated the National Historic Preservation Act. Accordingly, she canceled Solenex’s lease and revoked Solenex’s Application for Permit to Drill. The District Court for the District of Columbia held the Secretary did not possess the authority to cancel Solenex’s lease. …

Hualapai Tribe Water Rights Settlement Act Of 2022, United States 117th Congress

Native American Water Rights Settlement Project

The purposes of this Act are—(1) to resolve, fully and finally, all claims to rights to water in the State, including the Verde River, the Bill Williams River, and the Colorado River, of— (A) the Hualapai Tribe, on behalf of the Hualapai Tribe and the members of the Hualapai Tribe; and (B) the United States, acting as trustee for the Hualapai Tribe, the members of the Hualapai Tribe, and the allottees; (2) to authorize, ratify, and confirm the Hualapai Tribe water rights settlement agreement, to the extent that agreement is consistent with this Act; (3) to authorize and direct the …

Colorado River Indian Tribes Water Resiliency Act Of 2022, United States 117th Congress

Native American Water Rights Settlement Project

This Act authorizes the Colorado River Indian Tribes to enter into lease or exchange agreements and storage agreements relating to water of the Colorado River allocated to the Colorado River Indian Tribes, and for other purposes.

White Mountain Apache Tribe Water Rights Quantification Act, United States 117th Congress

Native American Water Rights Settlement Project

The purpose of this amendment to the White Mountain Apache Tribe Water Rights Quantification Act of 2010 is to extend the enforceability date for the deadline for publication of the statement of findings to December 30, 2027 with a repeal date of December 31, 2027 of Title III of the Act for failure to meet the revised deadline. Certain provisions include clarifying funding, cost indexing, cost overrun subaccount (increase in authorized appropriations and prohibition), use of funds (expenditures), oversight and accounting, and other purposes.

When Congress Passes The Buck: How Russia’S Invasion Of Ukraine Exposed Flaws In Granting The President Sanctioning Powers, Artem M. Joukov, Samantha M. Caspar

Seattle University Law Review

The United States (U.S.) Constitution provides few limitations on endowing the Executive Branch with powers to govern foreign trade, which was initially granted to the Legislature. In a world where global trade dominates, the power over foreign trade can be more important than the power over domestic matters. Leaving unrestrained trade authority to the Executive Branch may cause hazards for Americans and foreigners alike. Russia’s war in Ukraine demonstrates the flaws in permitting the Executive Branch to unilaterally sanction foreign states. This Article demonstrates how reactive Executive Branch policies infringed on the welfare and safety of American citizens and foreigners …

Pedaling Backwards: Examining The King County Board Of Health’S Choice To Repeal Its Bicycle Helmet Law, Schuyler M. Peters

Seattle University Law Review

In Part I, this Comment will explain the Helmet Law itself and the timeline that ultimately led to its repeal. Part II will focus on the positive impact of the Helmet Law, the dangers associated with the repeal, why the repeal should not have occurred in the manner it did, and what societal costs stem from the BOH’s decision. Part III will address the actions that must be taken to revoke this repeal and the reasons behind these alternative pathways, including an Equity Impact Review study specifically on the consequences of repeal, a collaborative outreach program to bring helmets to …

2023 Update: A Water Rights Manual For Mutual Domestic Water Consumers Associations, Utton Center, Zackeriah Carpenter, Gregory Chakalian, Darcy S. Bushnell

Publications

This is the 2023 update of the Water Rights Manual. The archival version is also available in our digital repository. 

The Utton Center prepared this Water Rights Manual to assist Mutual Domestic Water Consumers Associations (MDWCAs) with the development, protection and management of their water rights.

This manual provides an introduction to and defines Water Rights in New Mexico, as well as to acquire and have recognized Water Rights. This document also covers water management and planning, and provides additional resources.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Beyond The Business Case: Moving From Transactional To Transformational Inclusion, Jamillah Bowman Williams

Seattle University Law Review

While workplace diversity is a hot topic, the extent to which the diversity management movement has effectively improved intergroup relations and reduced racial inequality remains unclear.1 Despite large investments in diversity and inclusion training and other company wide initiatives, historically excluded groups remain vastly underrepresented in leadership and the most lucrative careers, such as finance, law, and technology. This calls the efficacy of diversity, equity, and inclusion (DEI) efforts into question, particularly with respect to reducing racial inequality in the workplace.

This Article explains why it is time for organizational leaders to move beyond the transactional case for diversity and …

How Firms Turn Middle Managers Into Diversity Leaders, Alexandra Kalev, Frank Dobbin

Seattle University Law Review

In 2007, the Conference Board published a piece calling middle managers “the biggest roadblock to diversity and inclusion” for standing in the way of change efforts. Today, many chief diversity officers report that they have failed both to diversify middle management and to get middle managers involved in promoting inclusion. We explore popular diversity programs that create “paper” or “symbolic” principles for achieving diversity (diversity policy statements and guidelines for hiring, promotion, and discharge), as well as programs that engage middle managers in promoting diversity (special recruitment and mentoring programs, and diversity task forces). “Paper” policies often fall flat, but …

Gender And The Constitutional Theory Of The Firm, Jamee K. Moudud

Seattle University Law Review

This Article adds to the literature that has linked feminist economics to foreign trade and development. It argues that two key factors need to be in place jointly if efforts to promote gender equity are to succeed. On the one hand it argues that foreign debt is an important constraint to domestic progressive social policies of all kinds as it increases the power of international creditors who generally tend to support austerity policies. On the other hand, while alleviating the burden of foreign debt via exportpromotion policies is necessary, it is by no means a sufficient condition to promote domestic …

Court’S Choice Of Law Ruling Undermines Washington Community Property Law: A Critique Of Shanghai Commercial Bank V. Chang, Brian D. Hulse

Seattle University Law Review

This Article deals with the issues that arise when Washington courts face the following scenario. One spouse enters into a contract without the joinder (and perhaps without the knowledge) of the other spouse. Both spouses are domiciled in Washington. The contract has contacts with one or more jurisdictions other than Washington and is generally governed as to validity and interpretation by the law of another jurisdiction. The contracting spouse defaults and the other party to the contract obtains a judgment on the contract. The court confronts a question about the property to which the plaintiff will have recourse to collect …

Policing For Profit: A Constitutional Analysis Of Washington State’S Civil Forfeiture Laws, Julia Doherty

Seattle University Law Review

The summer of 2020 reignited a conversation about the relationship between race and policing in the United States. While many have taken the opportunity to scrutinize the racially discriminate components of our criminal justice system, comparable aspects of civil law must be equally scrutinized. A particular area of concern pertains to racially biased policing and the concept of “policing for profits” with Black, Indigenous, and people of color communities (BIPOC), which is accomplished mainly through civil asset forfeiture at a state and federal level.

The World Moved On Without Me: Redefining Contraband In A Technology-Driven World For Youth Detained In Washington State, Stephanie A. Lowry

Seattle University Law Review

If you ask a teenager in the United States to show you one of their favorite memories, they will likely show you a picture or video on their cell phone. This is because Americans, especially teenagers, love cell phones. Ninety-seven percent of all Americans own a cell phone according to a continuously updated survey by the Pew Research Center. For teenagers aged thirteen to seventeen, the number is roughly 95%. For eighteen to twenty-nine-year-olds, the number grows to 100%. On average, eight to twelve-year-old’s use roughly five and a half hours of screen media per day, in comparison to thirteen …

“What’S Past Is Prologue”: The Story Of The Sale Of The University Of Puget Sound School Of Law To Seattle University, Annette E. Clark

Seattle University Law Review

When the Seattle University Law Review editorial staff invited me to write an updated history of the Seattle University School of Law in honor of our 50th anniversary, I planned to start the narrative with the year 1989, which was where the prior written history (authored by former Law Library Director Anita Steele and published by the Law Review) had left off. It also happens to be the year when I graduated from this law school and joined the tenure-track faculty, so 1989 seemed like a propitious place to begin. However, as I began to do the research necessary to …

A Path Forward: Litigating The Treaty-Based Claims Of Children Sexually Abused In The Indian Health Service System, Peter B. Janci, Stephen F. Crew, Zachary Pangares

Seattle University Law Review

In 1855, representatives for the United States traveled to the Great Plains with orders to seek peace with Blackfoot Nation so the westward expansion of “civilized” white settlers could continue without interruption. After weeks of negotiations, the United States plan materialized. The terms of these promises were memorialized on October 17, 1855, in a treaty between the United States government and Blackfoot Nation.

One hundred and sixty-seven years later, representatives for the United States and the Blackfoot Nation convened in Rapid City, South Dakota to discuss the U.S. government’s breach of the treaty’s terms. Eight Native men, including three from …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Blood On The Tracks, Thomas D. Russell

Seattle University Law Review

Streetcars were the greatest American tortfeasors of the early twentieth century, injuring approximately one in 331 urban Americans in 1907. This empirical study presents never-before-assembled data concerning litigation involving streetcar companies in California during the early twentieth century.

This Article demonstrates the methodological folly of relying upon appellate cases to describe the world of trial court litigation. Few cases went to trial. Plaintiffs lost about half their lawsuits. When plaintiffs did win, they won very little money. Regarding the bite taken out of the street railway company, the Superior Court was a flea.

Professor Gary Schwartz and Judge Richard Posner …

Eliminating Cash Bail In Washington State—Amending Criminal Rule 3.2, Simran Kaur

Seattle University Law Review

This Note discusses the following three parts. Part I provides an overview of the cash bail system, its history, and its contemporary use in Washington state. Part II presents the effects of bail on pretrial release, analyzing low-income and racial inequalities and the adverse impacts it can have on the accused. Part III focuses on solutions and alternatives to the cash bail system, using other states as case studies.

Promoting Corporate Diversity: The Uncertain Role Of Institutional Investors, Jill Fisch

Seattle University Law Review

Two developments are having an impact on corporate decisions. One is the increased engagement by institutional intermediaries and a shift in the focus of that engagement from corporate governance to environmental and social issues. The other is a heightened societal awareness of diversity, equity, and inclusion (DEI) issues, particularly the importance of diversity in corporate leadership. This Article considers the intersection between the two. It describes how institutional investors have focused their attention on increasing diversity in corporate leadership, the potential motivations for that focus, and the impact of that focus, to date. It highlights the tensions that result from …