Administrative Law Commons^™

Legal History: The Curious Case Of The Disappearing Unceded Lakota Territories, Sebastian F. Braun

American Indian Law Journal

This Article discusses whether the Lakota Nation still has title to the unceded territories outlined in the Treaty of 1868. While many accounts focus on the supposed diminishment of the Great Sioux Reservation, the question of the unceded lands has largely been forgotten. It has renewed relevance in the context of the Dakota Access Pipeline, which crosses the lands. From a broader perspective, the case raises questions about how history is understood, constructed, and selected in American Indian Law cases. Most legal cases, especially those concerning treaty rights, are rooted in an interpretation of history; if that history is misinterpreted …

Expansion Of Federal Benefits To Non-Native Adopted Children, Anna-Grace Hockensmith

American Indian Law Journal

There is palpable tension between tribal sovereignty and federal administrative control in the distribution of federal benefits to members of Tribal Nations. This tension is felt by adopted non-Native children who might struggle to receive federal benefits even though the tribe of their adopted parent(s) has accepted them as a member. This Note explores how adoption of a non-Native child by a tribal member intersects with tribal membership and whether that membership should be enough for the child to receive federal benefits.

The Note discusses four main topics, including: (1) tribal membership, adoption, and current federal enrollment criteria; (2) an …

Beyond Icwa: Within Family Court Systems, Mixed Indigenous Families Confront Ongoing Jurisdictional Violence, Nis Wilbur

American Indian Law Journal

Mixed Indigenous families (MIFs) navigating parental custody in the United States can find themselves trapped in a Battleship®-style jurisdictional maze, where tribal, state, and federal authorities collide unpredictably. This legal mess threatens to separate children from their tribal communities, undermines tribal sovereignty, and can force families into years of costly litigation. The problem is rooted in centuries of white supremacist law and policy that systematically dispossess tribes of culture and self-governance: from the Marshall Trilogy to the boarding school era and harmful adoption schemes. Today, legal frameworks like the UCCJEA remain insufficient as they minimize or ignore tribal civil jurisdiction, …

Table Of Contents

American Indian Law Journal

No abstract provided.

Workers’ Compensation Codes In American Indian* Tribal Nations, Autumn N. Siegel

American Indian Law Journal

This Article examines various Tribal Nations’ experiences in developing their own workers’ compensation systems using a comparative law and legal development approach, including direct interviews with a diverse range of tribal members. Tribal Nations’ self-created workers’ compensation codes predominantly rely on local models and expertise to establish and operate their systems. However, Tribal Nations also infuse their own cultural values into their codes, incorporating tribal perspectives and priorities such as valuing traditional medicine and peace-making alternative dispute resolution, providing more generously to volunteers, and incorporating return-to-work programs into their workers’ compensation systems. Some Tribal Nations also find it necessary to …

U.N.Masking American Exceptionalism: How International Frameworks Can Inform American Indian Policy, Kaitlin Reese

American Indian Law Journal

“U.N.masking American Exceptionalism: How International Frameworks Can Inform American Policy,” serves primarily to examine and criticize how American case law, such as Johnson v. M’Intosh, has been used in foreign courts to justify the Doctrine of Discovery and how, despite many other courts eventually acknowledging it as a harmful rule of law in meaningful ways, the United States has done no such thing. This Article walks through not only the legal cases both at home and abroad, but also delves into the historical background that led up to Johnson, examines the cases abroad that integrate the Doctrine of Discovery and …

The Tribal Rules Of Evidence, Nicole Morote

American Indian Law Journal

Rules of evidence shape litigation practice across the country. In this sense, they govern the truth as it enters the court. Legal scholarship has yet to study tribal approaches to evidence— an area with tremendous promise for legal practitioners and evidence rulemakers alike.

This Article is the first to do so. It analyzes an array of tribal evidence codes across the United States. It reveals three frameworks that describe tribes’ approaches to the Federal Rules. In doing so, it offers a modest contribution to the nascent intersection between Tribal law and evidence studies: crucial insight into tribal systems’ unique needs, …

Advancing The Rights Of Nature: Lessons From Sauk-Suiattle V. City Of Seattle, Harry S. Katz

American Indian Law Journal

Advocates for the “rights of nature” seek recognition of legal rights for natural elements such as mountains, rivers, and non-human species as a means of protecting the environment. In the United States, Tribal Nations have been at the forefront of this nascent movement. In a 2022 Washington state case, the Sauk-Suiattle Indian Tribe sued the City of Seattle, alleging that the City’s hydroelectric dams on the Skagit River infringe upon the rights of salmon. Those rights, they claim, include the salmon’s rights to exist, flourish, regenerate, and evolve. The case, known as Sauk-Suiattle Indian Tribe v. City of Seattle, …

Native History Is United States History: How United States History Censorship Leads To Passive Acceptance Of Racial Discrimination And Furthers The Decline Of Tribal Sovereignty, Nickolasa A. Jackson

American Indian Law Journal

Native stories are embedded in the United States Constitution, property law, and the nation’s legal and political framework, but education frequently omits these truths. Such erasure perpetuates misunderstanding, invisibility, and hostility toward Native communities, obscuring the reality that the United States was built through the dispossession, coercion, and suffering of Indigenous Peoples. Whitewashing history has allowed the nation to claim moral virtue and industriousness while denying the foundational role of Indigenous Peoples. The Article emphasizes that Native rights, whether land, water, or other treaty-protected entitlements, as well as inherent rights such as tribal sovereignty, are not charitable or discretionary; they …

Center For Biological Diversity V. U.S. Bureau Of Land Management, Erika C. Rader

Public Land & Resources Law Review

The Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt. marks the Ninth Circuit’s second time considering the Willow Project, which plans to drill oil in Alaska. Environmental plaintiffs brought a series of claims under NEPA, the Reserves Act, ANILCA, and the ESA to stop or stall the Project. Plaintiffs focused on the BLM’s use of a “full field development standard” in assessing alternatives to the Project. Despite the range of claims, the Ninth Circuit allowed the Project to move forward, but on remand required the BLM to explain its reasoning for departing from the full field development standard …

De Novo Review For Asylum At The Circuit Court Level: Comparing A Stringent Standard Of Review For Asylum Seekers In The U.S. To The European Court Of Human Rights’ Standard, Dani Gómez

Human Rights Brief

On March 14, 2022, an immigration judge (IJ) denied the asylum applications of Douglas Humberto Urias-Orellana, Sayra Iliana Gamez-Mejia, and their child, ordering them removed to El Salvador. Urias-Orellana and his family had been placed in removal proceedings with

the Executive Office of Immigration Review (EOIR) and filed applications for asylum.  At the individual merits hearing, the IJ ruled that the threats were “insufficiently menacing” to constitute persecution. The Board of Immigration Appeals (BIA) affirmed. On further appeal, the First Circuit denied review, holding that courts may not re-evaluate the conclusions drawn from the factual findings de novo unless “any …

Board Of Registered Nursing, Sydney Verga, Katie Gonzalez, Marcus Friedman

California Regulatory Law Reporter

No abstract provided.

Masthead

California Regulatory Law Reporter

No abstract provided.

Epa And Nepa’S International Cooperation Provision, Terrence Neal

Faculty Scholarship

The goal of this Article is to analyze and highlight EPA 's authority to undertake international activities - a topic that has been more overlooked than EPA 's foreign policy role itself. In accomplishing this goal, it places particular focus on the nature and scope of Section 102(2)(I) of the National Environmental Policy Act (NEPA). This Article asserts that Section 102(2)(I) is not merely a policy statement. It prescribes both an authorization and a discretionary duty to engage in international environmental cooperation. NEPA's text and legislative history, as well as persuasive judicial and administrative decisions, affirm this. After clarifying Section …

How The Supreme Court’S Inconsistent Approach To Granting Emergency Relief Will Exacerbate, Rather Than Mitigate The Disruption Its Emergency Stay Policy Is Supposed To Address, Harvey L. Reiter

Cardozo Law Review de•novo

The federal government has used the Supreme Court’s emergency or “shadow” docket to great effect this past year, securing stay after stay of lower court rulings that had blocked many of the President’s executive orders. But the Court’s rulings have come, almost invariably, without any explanation of its reasoning. And its opaque and uneven rulings have also come at a potential cost to the Court’s credibility. This Article illustrates the uneven nature of the Court’s rulings by contrasting two lines of cases: (1) the Court’s stays of lower court rulings restoring to their positions FTC, NLRB, EEOC, and MSPB members …

The Brave New World Of Administrative Law, Amy J. Wildermuth

Articles

Administrative law is in substantial flux. Over the last fifteen years, beginning with its decision in Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court has transformed administrative law in profound ways. In the decade and a half since that case, we have witnessed core precedents fall or be substantially narrowed, with seemingly more on the horizon. Many have characterized the Court’s project as aggrandizing power to the President, as seeking to rein in runaway agencies, or even as undoing the administrative state.

The reality is more complex. To grasp where the Court’s project might take …

Ghostwriting The Government, Bridget C.E. Dooling

Marquette Law Review

Ghostwriting is when a writer prepares materials to be issued under someone else’s name. The word describes a politician’s use of a speechwriter, a student’s purchase of a term paper, or a tongue-twisted admirer asking a poet to craft a love letter on his behalf. It also happens inside organizations every day: staff draft documents for others “up the chain” to sign. But when legislators rely on staff and lobbyists to draft bills, when an agency head relies on staff or contractors to write a rule, and when a judge relies on her clerk for a draft opinion, the benefits …

Cloudy Oversight: How Administrative Conflict Over International Airline Alliances’ Antitrust Immunity Harms Consumers Of Commercial Air Transportation., Hamin Jeong

American University Business Law Review

Antitrust law governs and guides how regulatory agencies should scrutinize unfair, monopolistic corporate behavior. However, when several different agencies are tasked with enforcing the same legal principles, different interpretations of such principles inevitably arise.

 The U.S. Department of Justice (DOJ) acts as the main body that enforces antitrust actions in the domestic airline industry, but there is an exception to the general rule. Congress delegated the U.S. Department of Transportation (DOT) the authority to grant antitrust immunity to international airline alliances, which form when domestic and foreign airlines partner to increase flight services between their respective nations.

However, as codified …

From Myers To Slaughter: A Brief Theory Of The Constitutionalization Of Secondary Sources, Dana Neacsu, Paul D. Callister

Faculty Works

For more than two centuries, American constitutional adjudication has relied upon secondary sources. Yet constitutional theory has almost entirely ignored them. Originalism debates constitutional text. Living constitutionalism debates constitutional evolution. Theories of precedent debate judicial authority. None asks a more fundamental question: What role do secondary sources play in constitutional adjudication? This Article argues that the answer has fundamentally changed in the last 100 of years. Chief Justice William Howard Taft's opinion in Myers v. United States (1926) marked a constitutional revolution by transforming secondary authorities from explanatory materials into evidence of constitutional continuity. Exactly one century later, Chief Justice …

The Executive's Takeover Of Independent Agencies: How Institutional Design Gave Way To Political Will, Neal Devins

Faculty Publications

The anticipated demise of the independent agency is a saga that implicates Congress as much as it does the President or the Supreme Court. By capitulating to presidential initiatives and failing to defend their institutional prerogatives, Congress has facilitated presidential control of the administrative state. Indeed, irrespective of whether the Court formally repudiates Humphrey’s Executor, Congress has largely acquiesced to a regime whereby presidents essentially control independent agencies. By highlighting the competing incentives of Congress and the White House, this Essay explains the rise of presidential unilateralism vis-à-vis independent agencies. This Essay also casts light on a critically important but …