Indigenous, Indian, and Aboriginal Law Commons^™

Climate Change And The Reconfiguration Of Arctic Access, Charles H. Norchi, Amanda H. Lynch

Faculty Publications

The Arctic is warming faster than any other region on Earth, with surface air temperatures increasing at a rate nearly four times the global average.1 This amplification of global change has been reshaping the Arctic for decades, altering sea ice extent and thickness, snow regimes, permafrost stability, and hydrological systems. Against this backdrop, a persistent narrative has taken hold that the diminishing cryosphere2 is setting the table for opportunity: opening the Arctic to navigation, development, and exploitation. But this thaw renders the Arctic neither benign nor uniformly accessible. The region remains frozen for most of the year, dark for months …

Addressing The Gender Wage Gap For Native American Women, Danielle Digrazia, Ann C. Juliano

Faculty Publications

No abstract provided.

The Real Wrongs Of Icwa, James G. Dwyer

Faculty Publications

Haaland v. Brackeen rejected federalism-based challenges to the Indian Child Welfare Act (ICWA) but signaled receptivity to future challenges based on individual rights. The adult-focused rights claims presented in Haaland, however, miss the mark of what is truly problematic about ICWA. This Article presents an in-depth, children’s-rights based critique of the Act, explaining how it violates a fundamental right against state exertion of power over central aspects of persons’ private lives to their detriment for illicit purposes. In fact, the Act’s defenders are complicit in the same sort of government violence that motivated ICWA’s enactment—erasing aspects of children’s heritage …

Sovereignty And Dependence In The American Empire: Native Nations, Territories, And Overseas Colonies, Alvin Padilla-Babilonia

Faculty Publications

What justifies plenary powers over Native nations, U.S. territories, and overseas colonies? One answer is the text of the Constitution: the Indian Commerce Clause or the Territorial Clause. Another answer is sovereignty under international law. In this Article, I argue that these legalistic explanations overlook a third answer: that political and judicial actors justified plenary powers based on the colonial notion that these so-called dependent peoples were incapable of self- government.

Members of Congress, presidents, federal judges, and territorial governors reconciled republicanism and colonialism in the American empire by constituting Native nations, the territories, and the overseas colonies as dependent …

Indian Country Lawyers: A South Dakota Survey, Bryce Drapeaux, Hannah Haksgaard

Faculty Publications

South Dakota’s reservations are rural and suffer from a shortage of lawyers. Relatedly, there are very few Native American licensed attorneys in South Dakota. This essay confronts the rural lawyer shortage on South Dakota’s reservations by documenting the lawyers practicing on South Dakota’s reservations. In addition, this essay addresses the access to justice crisis amplified on South Dakota’s reservations by this lawyer shortage. The essay provides some insight into the difficulties of placing more lawyers onto the reservations, while also offering potential pathways to remedy this crisis.

Burning Questions: Changing Legal Narratives On Cannabis In Indian Country, Robin M. Rotman, Sam J. Carter

Faculty Publications

In the not-so-distant past, thoughts of Cannabis legalization in the United States were radical. In the present day, the narratives around Cannabis are changing. The term “present day” affixes this Article to early 2023, a snapshot in time. To understand the current legal narratives surrounding Cannabis, and what they might become in the future, it is important to examine the history of Cannabis law and policy in United States. This Article begins by discussing Cannabis regulation in the United States, from the rise of federal regulation to the gradual deregulation by states with tacit federal consent. The Article then examines …

Resurfacing Sovereignty: Who Regulates Surface Mining In Indian Country After Mcgirt?, Robin M. Rotman, Sam J. Carter

Faculty Publications

This article examines disputes over surface mining jurisdiction on the Muscogee (Creek) Nation Reservation post-McGirt and the larger implications for sovereignty and environmental justice in Indian Country that follow. Part II summarizes the history of federal, state, and tribal relations and provides an analysis of the McGirt decision and its potential impacts on natural resource issues. Part III offers an examination of jurisdictional uncertainties post-McGirt through an in-depth discussion of the Surface Mining Control and Reclamation Act and the State of Oklahoma v. United States Department of the Interior case. Drawing from the examination of surface mining regulation, Part IV …

It's None Of Your Business: State Regulation Of Tribal Business Undermines Sovereignty And Justice, Robin M. Rotman, Sam J. Carter

Faculty Publications

The U.S. Constitution grants the federal government plenary power over American Indian affairs, yet states are increasingly attempting to assert regulatory and tax jurisdiction over tribal businesses. This overreach threatens tribal sovereignty and contravenes the terms of treaties entered between the United States and American Indian tribes. This Article begins by examining the legal foundations of federal, state, and tribal relations. It then examines recent cases across four business sectors - gaming, tobacco sales, petroleum sales, and online lending - in order to illustrate the pervasive jurisdictional challenges faced by courts in cases involving tribal businesses. This Article offers three …

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 has …

"It Is Not Necessary For Eagles To Be Crows": Book Review, Neil Fulton

Faculty Publications

No abstract provided.

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

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

Faculty Publications

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 …

Oklahoma Tax Commission V. United States: Death Taxes On Restricted Indian Personalty, Thomas Simmons

Faculty Publications

No abstract provided.

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, which give preference to …

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

Faculty Publications

No abstract provided.

Land Into Trust: An Inquiry Into Law, Policy, And History, Frank Pommersheim

Faculty Publications

No abstract provided.

The Crazy Horse Malt Liquor Case: From Tradition To Modernity And Halfway Back (Part Iii Of South Dakota Law Review Trilogy), Frank Pommersheim

Faculty Publications

No abstract provided.

Amicus Briefs In Indian Law: The Case Of Plains Commerce Bank V. Long Family Land And Cattle Co., Inc., ( Part Ii Of South Dakota Law Review Trilogy), Frank Pommersheim

Faculty Publications

No abstract provided.

Reassessing Concurrent Tribal–State–Federal Criminal Jurisdiction In Kansas, John J. Francis, Stacy L. Leeds, Aliza Organick, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Federal Indian Law is frequently described as a jurisdictional quagmire. Depending on the unique history of a given tribe, the extent to which the tribe has retained a territorial boundary or contiguous land-base, and depending on a tribe’s geographic location, a different mix of exclusive or concurrent tribal, state, federal jurisdiction will result. Moreover, the practical realities on the ground often result in one sovereign entity exercising more or less power than the law on the books might otherwise suggest.

In the criminal law context, tribal–state–federal jurisdiction generally rests on the three premises: (1) tribes retain inherent authority to …

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

Faculty Publications

No abstract provided.

Plains Commerce Bank V. Long Family Land And Cattle Company, Inc.: An Introduction With Questions, Frank Pommersheim

Faculty Publications

No abstract provided.

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

Faculty Publications

No abstract provided.

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 …

"New" Directions In Indian Law Scholarship: An Afterward, Frank Pommersheim

Faculty Publications

No abstract provided.

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 …

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 …