Indigenous, Indian, and Aboriginal Law Commons^™

Great Nations Can Work On Mistakes, Kevin Washburn

Faculty Scholarship

No abstract provided.

Indian Gaming – The Next 25 Years, Kevin Washburn

Faculty Scholarship

Testimony of Kevin K. Washburn Assistant Secretary for Indian Affairs United States Department of the Interior Before the Senate Committee on Indian Affairs Oversight Hearing

Law And Order Commission Report: “A Roadmap For Making Native America Safer.”, Kevin Washburn

Faculty Scholarship

Testimony of Kevin K. Washburn Assistant Secretary Indian Affairs United States Department of the Interior Before The Senate Committee on Indian Affairs On The Law and Order Commission Report: “A Roadmap for Making Native America Safer.”

Forrest Gerard’S Legacy Is Self-Determination For Tribes, Kevin Washburn

Faculty Scholarship

The passing of Albuquerque resident and former Assistant Secretary of Indian Affairs, Forrest J. Gerard, on Dec. 28 provides an opportunity to take stock of the important federal Indian policies he championed and his contributions to Native Americans across the country deserve to be celebrated.

Exposing The Institutions That Mask Us, Christine Zuni Cruz

Faculty Scholarship

I am going to stand in tribute to Professor Montoya and her family and to the Chicana/o-Latina/o Law Review, which brings us to this point where we are considering and celebrating Professor Montoyas Mascaras, Trenzas, Y Grenas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse, twenty years after its initial publication. Professor Montoya's article is timeless.

Tribal Environmental Programs: Providing Meaningful Involvement And Fair Treatment, Jeanette Wolfley

Faculty Scholarship

Tribal governments are developing and implementing federally authorized and/or approved tribal environmental programs in the areas of water quality, air quality, and solid waste. As part of this federal delegation process there are federal requirements relating to due process and fair treatment of the public and stakeholders who may be affected by the tribal environmental laws and regulations. This article explores and examines public participation and due process within the tribal context and proposes tribal institutions are in the best position to articulate the tribal cultural and social norms of public participation and fair treatment. It is through this process …

Comparative Institutional Competency And Sovereignty In Indian Affairs, Michalyn Steele

Faculty Scholarship

While vigorous debate surrounds the proper scope and ambit of inherent tribal authority, there remains a critical antecedent question: whether Congress or the courts are ultimately best situated to define the contours of inherent tribal authority. In February 2013, Congress enacted controversial tribal jurisdiction provisions as part of the Violence Against Women Act reauthorization recognizing and affirming inherent tribal authority to prosecute all persons, including non-Indian offenders, for crimes of domestic violence in Indian country. This assertion by Congress of its authority to set the bounds of tribal inherent authority -- beyond where the United States Supreme Court has held …

In Plain View, Christina D. Ponsa-Kraus

Faculty Scholarship

In this tightly argued and thoroughly engaging article, Gregory Ablavsky makes the case for a revisionist history of the U.S. Constitution that places Native American Indians at its center. While it isn’t hard to show that conventional constitutional histories largely neglect Indians, it isn’t easy to prove that such neglect is not benign. That is, it’s one thing to argue that standard accounts should include a discussion of Indians, but it’s another thing entirely to make a convincing case that core constitutional understandings would be fundamentally altered if historians fully and prominently integrated the history of relations with Indians into …

Carcieri: Bringing Certainty To Trust Land Acquisitions, Kevin Washburn

Faculty Scholarship

No abstract provided.

Navajo Nation Labor Commission Appellants' Opening Brief, Paul Spruhan

Faculty Scholarship

The District Court erred when it concluded the Navajo Nation’s employment jurisdiction over the school districts was “plainly lacking,” and the Court was required to stay or dismiss the case pending the school districts’ exhaustion of its remedies in the Navajo Nation courts. Under the plainly lacking exception, this Court requires exhaustion of tribal remedies when jurisdiction is “plausible” or “colorable.” Under the circumstances of the case, which concerns treaty rights, tribal-state relations, and the fact-intensive rules of Montana v. United States, 450 U.S. 544 (1981), the District Court could not have made that determination without a robust factual …

The Right To Counsel For Indians Accused Of Crime: A Tribal And Congressional Imperative, Barbara L. Creel

Faculty Scholarship

Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it …

Toward Genuine Tribal Consultation In The 21st Century, Colette Routel, Jeffrey K. Holth

Faculty Scholarship

The tribal right to consultation requires the federal government to consult with Indian tribes prior to the approval of any federal project, regulation, or agency policy. This article, which provides the first comprehensive analysis of this right, highlights the current inconsistencies in interpretation and application of the consultation duty. It then attempts to provide suggestions for changes that can be implemented by the legislative, executive or judicial branches.

In Part I, we provide a brief overview of the development of the trust responsibility and explain how it came to include three substantive duties: to provide services to tribal members, to …

Muscogee Constitutional Jurisprudence: Vhakv Em Pvtakv (The Carpet Under The Law), Sarah Deer, Cecilia Knapp

Faculty Scholarship

In 1974, a group of Mvskoke citizens from Oklahoma sued the federal government in federal court. Hanging in the balance was the future of Mvskoke self-determination. The plaintiffs insisted that their 1867 Constitution remained in full effect, and that they still governed themselves pursuant to it. The United States argued that the constitution had been nullified by federal law passed in the early 1900s.

To find in favor of the plaintiffs, the court would have to rule that the United States had been ignoring the most basic civil rights of Mvskoke citizens and flouting the law for over seventy years. …

Minnesota Bounties On Dakota Men During The U.S.-Dakota War, Colette Routel

Faculty Scholarship

The U.S.-Dakota War was one of the formative events in Minnesota history, and despite the passage of time, it still stirs up powerful emotions among descendants of the Dakota and white settlers who experienced this tragedy. Hundreds of people lost their lives in just over a month of fighting in 1862. By the time the year was over, thirty-eight Dakota men had been hanged in the largest mass execution in United States history. Not long afterwards, the United States abrogated its treaties with the Dakota, confiscated their reservations along the Minnesota River, and forced most of the Dakota to remove …

Criminal Justice In Indian Country, Sarah Deer

Faculty Scholarship

On March 7,2013, President Obama signed the 2013 Violence Against Women Act Re-authorization ("VAWA 2013"). Contained within that legislation is a partial re-authorization of tribal criminal jurisdiction over non-Indians, which is a topic covered in this short article. VAWA 2013 recognizes that the inherent right of tribal nations includes criminal jurisdiction over non-Indian defendants accused of domestic violence. The topics discussed in this article-statistical evidence, interdiction of violence, and protecting Native women-will likely become even more important as tribal leaders and jurists consider the future of tribal self-determination and seek to realize the full potential of the changes created by …

Dakota Tribal Courts In Minnesota: Benchmarks Of Self-Determination, Sarah Deer, John E. Jacobson

Faculty Scholarship

Professor Frank Pommersheim has written that “[t]ribal courts are the front line institutions that most often confront issues of American Indian self-determination and sovereignty.”1 It is only fitting, then, that an issue devoted to the legal history and survival of Dakota people includes some information about the role Dakota tribal courts play in furthering the aims of self-determination. Of the over 565 federally recognized tribes in the United States, most operate some form of dispute resolution or judicial system—and all have distinct, unique histories and stories.2 Little has been written about the Dakota legal systems, and it is in the …

La Verdad, El Poder, Y La Liberacion, Christine Zuni Cruz

Faculty Scholarship

A Reflection on Margaret Montoya, Mascaras, Trenzas, y Grenas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse, 17 HARV. WOMENS L. J. 185 (1994), 15 CHICANO-LATINO L. REV. 1 (1994)' Professor Margaret Montoyas Mascaras, Trenzas y Grenas: Un/Masking The Self While Unbraiding Latina Stories and Legal Discourse1 was published during the first year of my entry into the legal academy as a visiting professor. This reflection on her influential article addresses three of the major themes that resonate most strongly for me. The first is the assimilative pull of the legal academic institution, the second is the power …

“Indians, In A Jurisdictional Sense”: Tribal Citizenship And Other Forms Of Non-Indian Consent To Tribal Criminal Jurisdiction, Paul Spruhan

Faculty Scholarship

Can tribes exert criminal jurisdiction over non- Indians who consent, by whatever means, to adhere to tribal laws? Has federal Indian law, and tribes’ reaction to it, changed the universe of tribal jurisdiction so significantly that non-Indians can truly never be subject to tribal criminal law? This article explores the concept of consent as a still viable theory of tribal criminal jurisdiction. I first examine some historical examples of non-Indian consent through adoption or naturalization under tribal law, and reactions to such consent by federal officials. I then discuss modern examples of tribal law theories of consent, primarily through recent …

Law School A Wellspring Of Future U.S Leaders, Kevin Washburn

Faculty Scholarship

People sometimes ask me if our country has too many lawyers. Well, yes, and it has led to our success. Trust is based on the best judicial system in the world and a strong commitment to the rule of law.

Law School A Wellspring Of Future U.S. Leaders, Kevin Washburn

Faculty Scholarship

No abstract provided.

The Indigenous Legal Tradition As Foundational Law, Christine Zuni Cruz

Faculty Scholarship

This chapter is drawn from a transcribed joint presentation made by Christine Zuni Cruz (Isleta/Ohkay Owingeh) and Casey Douma (Laguna/Hopi-Tewa) at the Pueblo Convocation in April 2012 at Tamaya. Sections I, II and V are based on the presentation made by Christine Zuni Cruz; Sections III and IV summarize the presentation made by Casey Douma. Section VI combines the concluding thoughts of Zuni Cruz and Douma. Special thanks to Aaron Sims (Acoma Pueblo) for producing the computer images for Figures 1 and 4. Figures 1 and 4 are adapted illustrations created by Christine Zuni Cruz in an earlier article (Zuni …

What's At Stake For Tribes? – The U.S. Department Of Justice Office Of Legal Counsel Opinion On Internet Gaming, Testimony Of Dean Kevin K. Washburn, Oversight Hearing Before The United States Senate Committee On Indian Affairs, 112th Congress, Second Session, Kevin Washburn

Faculty Scholarship

The recent opinion by the Office of Legal Counsel has created a lot of activity after years of uncertainty about the legality of Internet gaming in the United States. Internet gaming poses a threat of unknown magnitude to brick and mortar casinos, including Indian casinos. Because internet activities are difficult to regulate across state boundaries and national uniformity is likely to be more effective and more efficient than multiple state regulatory structures, Congress should federalize the regulation of Internet gaming. Congress should, however, consider the important role that Indian gaming has had in lifting the socioeconomic status of Indian people …

Garden Of Truth, Sarah Deer

Faculty Scholarship

On Oct. 27, 2011, a report entitled “Garden of Truth: The Prostitution and Trafficking of Native Women in Minnesota” was released in St. Paul, Minn. The report was the culmination of a three-year research project conducted in Minnesota by two nonprofit organizations: the Minnesota Indian Women’s Sexual Assault Coalition, a grassroots organization of Native American women that is based in St. Paul and focuses on outreach and awareness for survivors of sexual assault, and Prostitution Research and Education, a nonprofit organization based in San Francisco. This unique collaboration between advocates of Native American women and social scientists has produced a …

Lines Of Tribe, Christine Zuni Cruz

Faculty Scholarship

It is important to begin by explaining why I take the title of my essay from the statement in President Barack Obama's 2009 Inaugural Address: "the lines of tribe shall soon dissolve." During the address, his words affected me and they remained with me long afterward. President Obama may very well have meant what he said in a metaphoric or figurative sense; I have certainly been provided with many interpretations and assurances by most that a literal meaning was not his intent and that he instead spoke in a good way of the beneficial melting of divisions between us." It …

Response To House Memorial 41 Requesting A Study Of The Use Of Natural Gas As A Transportation Fuel, Kevin Washburn, Kevin Boberg, Jeffrey Kendall

Faculty Scholarship

This paper addresses legal, logistical and technological issues related to the use of compressed natural gas (CNG) as a transportation fuel in New Mexico. It was prepared at the request of the NM State legislature in House Memorial 41.

Legislature Mustn't Rush Redistricting (No One Size Fits All In Judicial Selection), Kevin Washburn

Faculty Scholarship

No abstract provided.

Hoping For A Smooth [Redistricting] Process This Time, Kevin Washburn

Faculty Scholarship

No abstract provided.

Reassessing Concurrent Tribal-State-Federal Criminal Jurisdiction In Kansas, Aliza Organick

Faculty Scholarship

This Article questions the continued viability of the Kansas Act federal legislation, which extended Indian country criminal jurisdiction to the state of Kansas, while leaving unimpaired preexisting tribal and federal jurisdiction over the same offenses. This Article concludes with recommendations for legislative reform and the consideration of intergovernmental agreements with an eye toward providing a solution that respects modern policies of tribal self-determination, protects the financial resources and judicial economy of state and tribal courts, and protects the rights of defendants who may be subject to multiple prosecutions for the same offense.

Tribal Court Convictions And The Federal Sentencing Guidelines: Respect For Tribal Courts And Tribal People In Federal Sentencing, Barbara L. Creel

Faculty Scholarship

This article critiques a proposal to include tribal court criminal convictions and sentences in the federal sentencing scheme. The proposal, as articulated by Kevin Washburn, calls for an amendment to the Federal Sentencing Guidelines to count tribal court convictions in calculating an Indian defendants criminal history score to determine a federal prison sentence. Currently, tribal court convictions are not directly counted in criminal history, but may be used to support an 'upward departure' to increase the Native defendant's overall federal sentence. Washburn's proposal seeks to gain 'respect' for tribal courts, based upon a premise that tribal convictions must be afforded …

Elena Kagan And The Miracle At Harvard, Kevin Washburn

Faculty Scholarship

During the past ten years, Harvard Law School has been transformed. Current students embrace the institution enthusiastically, appreciating not only the Harvard degree, but the process of earning it. Elena Kagan deserves much of the credit. Kagan led Harvard Law School through this transformation, which is identified here as the "Miracle at Harvard."