Indigenous, Indian, and Aboriginal Law Commons^™

In Theory, In Practice: Judging State Jurisdiction In Indian Country, Carole Goldberg

University of Colorado Law Review

International relations theory suggests some new ways of thinking about the conflict between states and tribes over jurisdiction in Indian country. Realists portray the struggle as a clash of self-interested political actors, with the most powerful prevailing. Norms-driven theory suggests that perceptions of which legal system satisfies widely accepted standards for fair and effective justice will determine which entity is allowed jurisdiction. Since norms-driven analysis seems more prevalent in Supreme Court decisions, this Article pursues its implications for tribal-state jurisdictional conflicts, finding that federal courts and other decisionmakers seem to favor state over tribal jurisdiction because state jurisdiction is perceived …

Separate But Unequal: The Federal Criminal Justice System In Indian Country, Troy A. Eid, Carrie Covington Doyle

University of Colorado Law Review

In this Article, Troy Eid, a former United States Attorney for the District of Colorado, and Carrie Covington Doyle conclude that the federal criminal justice system serving Indian country today is "separate but unequal" and violates the Equal Protection rights of Native Americans living and working there. That system discriminates invidiously because it categorically applies only to Native Americans and then only to crimes arising on Indian lands. It is unequal because it is largely unaccountable, needlessly complicated, comparatively under-funded, and results in disproportionately more severe punishments for the same crimes, especially for juveniles. This Article traces the historical foundations …

Finding The Indian Child Welfare Act In Unexpected Places: Applicability In Private Non-Parent Custody Actions, Jill E. Tompkins

University of Colorado Law Review

In recent years, as an increasing number of Indian parents struggle with substance abuse and addiction, the number of abused and neglected Indian children is on the rise. Consequently, state child welfare agencies are overwhelmed, and caseworkers are only able to intervene in the most egregious situations. This understaffing of state agencies forces other family members and non-relatives to step in and care for these children. The federal Indian Child Welfare Act of 1978 ("ICWA") was enacted by the United States Congress to stem the removal, often unwarranted, of an alarmingly high percentage of Indian children from their families through …

Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide For Judges, Sarah Krakoff

University of Colorado Law Review

This Article provides a summary of the law of tribal civil jurisdiction over persons who are not members of the governing tribe ("nonmembers'), followed by an analysis of trends in the lower courts. It was written to respond to a consensus view at the University of Colorado Law Review Symposium: "The Next Great Generation of American Indian Law Judges," in January 2010, that a concise, practical, yet indepth treatment of this subject would be useful to the judiciary as well as practitioners. The Article traces the development of the Supreme Court's common law of tribal civil judicial jurisdiction from 1959 …

Power Without Law: The Supreme Court Of Canada, The Marshall Decisions, And The Failure Of Judicial Activism, Diana Ginn

Articles, Book Chapters, & Popular Press

In Power Without Law, author Alex Cameron strongly criticizes "incautious judicial activism" which allows the law to become "too malleable to personal judicial predilection."' Cameron makes his arguments primarily through an analysis of a 1999 decision of the Supreme Court of Canada, R v Marshall (No 1)," in which the majority of the Court held that Aboriginal peoples in the Maritimes have a treaty right to hunt, fish and gather, and to sell the products of these activities in order to provide themselves with a moderate livelihood. Cameron also comments on two subsequent and closely related decisions, R v Marshall …

Ahistorical Indians And Reservation Resources, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

The article is an in-depth exploration of the impacts of an Indian tribe's decision to pursue an environmentally destructive form of economic development. The history of Navajo Nation's coal leasing provides the background for the tribe's recent proposal to build a coal-fired power plant and the controversies surrounding the proposal and the environmental review process.

The Duty To Consult And Accommodate: Procedural Justice As Aboriginal Rights, Lorne Sossin

Articles & Book Chapters

This article explores the development and application of the “duty to consult and accommodate” from an administrative law perspective and more broadly con- siders the promise and limitations of procedural justice through the context of ab- original rights. The question addressed in this article is the relationship between procedural justice and substantive outcomes in the context of aboriginal rights in Canada. More specifically, by developing a “duty to consult and accommodate” on the part of the Crown with aboriginal communities who have asserted but not yet proven land claims, has the Court advanced the potential for reconciliation, or provided a …

The Unfulfilled Promise Of The Indian Commerce Clause And State Taxation, Richard Pomp

Faculty Articles and Papers

The Constitution gives Congress the right to “regulate Commerce . . . with the Indian tribes.” Has the Indian Commerce Clause achieved its purpose? Have the Courts interpreted the Clause consistent with Congressional intent? I argue that the answer is, disappointingly, “no.”

The Supreme Court has emasculated and denigrated the Indian Commerce Clause, preventing implementation of the Founders’ vision. The Court has refused to use the Clause as a shield against state taxation.

Chief Justice John Marshall had the opportunity in 1832 in Worcester v. Georgia to shape the Clause into a powerful doctrine. As a ratifier, he was privy …

Equal Standing With States: Tribal Sovereignty And Standing After Massachusetts V. Epa, Joseph Mead, Nicholas Fromherz

All Maxine Goodman Levin School of Urban Affairs Publications

In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court held that Massachusetts was entitled to "special solicitude" in the standing analysis because it was sovereign. As a result, Massachusetts passed the standing threshold in a global warming case where an ordinary litigant may have been stymied. The Supreme Court’s analysis raises an interesting question: Are Indian tribes—which have been considered sovereign entities since before the founding, and which hold lands facing heavy environmental pressure—entitled to "special solicitude" as well? We think they should be.

To make this argument, we begin by discussing standing basics; dissecting Massachusetts v. …

Crow Dog Vs. Spotted Tail: Case Closed, Timothy Connors, Vivek Sankaran

Articles

In 1868, Chief Spotted Tail signed a United States government treaty with an X. Spotted Tail was a member of the Brule Sioux Tribe, related by marriage to Crazy Horse. The government treaty recognized the Black Hills as part of the Great Sioux reservation. As such, exclusive use of the Black Hills by the Sioux people was guaranteed. Monroe, Michigan, native Gen. George Custer changed all that. In 1874, he led an expedition into that protected land, announced the discovery of gold, and the rush of prospectors followed. Within two years, Custer attacked at Little Big Horn and met his …

Stories In Mexico And The United States About The Border: The Rhetoric And The Realities, Gloria Valencia-Weber, Antoinette Sedillo Lopez

Faculty Scholarship

Our goal in this article is to demonstrate how perspective, political agenda, and personal experiences affect how stories about the Mexico-U.S. Border are framed. The framing is shaped by audience and emotional appeal, as well as political agenda. Stories framed and portrayed as personal experiences and stock narratives about a group or country can shape the attitude, experience, and behavior of others. Our discussion will: 1) examine the concept of using word choices and metaphors as devices in storytelling to frame political, economic and social issues, which are meant to evoke certain emotional responses among specific audiences in the immigration …

The Next Great Generation Of American Indian Law Judges, Kevin Washburn

Faculty Scholarship

This short essay, which was the keynote address at a conference of the same title in 2010, argues that the best predictors of good Indian law judging are education, familiarity and experience. People who have been raised believing that there are only two orders of government in the United States are often surprised when they encounter the legal existence of Indian tribes. Most judges become more comfortable with notions of tribal sovereignty after prolonged exposure to cases discussing those principles. Thus, educating all Americans about Indian tribes in primary and secondary education would produce better policy-makers in general and better …

Clarifying Cultural Property, Kristen A. Carpenter, Sonia K. Katyal, Angela R. Riley

Publications

Author Stephenie Meyer forever altered the cultural existence of Quileute Indians when she wrote them into her Twilight novels. Now a veritable global phenomenon complete with books, movies, and affiliated merchandise, the Twilight series depicts young, male members of the tribe as vampire-fighting werewolves who ferociously defend a peace and territorial treaty made with local bloodsuckers. In reality, the Quileute Tribe consists of approximately 700 Indians, many of whom live on a remote reservation in the Pacific Northwest, a tiny parcel of the once vast Quileute territory. Since Twilight's unprecedented international success, the Quileute have been overwhelmed with fans …

The Last Indian Raid In Kansas: Context, Colonialism, And Philip P. Frickey's Contributions To American Indian Law, Sarah Krakoff

Publications

To many, American Indian law is a remote and anomalous area of the law. To others, including Professor Phil Frickey, themes in American Indian law are central to our identity as a nation, and lessons from the field inform broader understandings of the competencies and limitations of the federal judiciary. One of Professor Frickey’s recurring scholarly arguments is that the federal courts are most within their areas of institutional competence when they approach contemporary Indian law questions as structural disputes between sovereigns, rather than as individual conflicts amenable to the application of mainstream public law values. An event described as …

Values In Transition: The Chiricahua Apache From 1886-1914, John W. Ragsdale Jr

Faculty Works

No abstract provided.

The Stories We Tell, And Have Told, About Tribal Sovereignty: Legal Fictions At Their Most Pernicious, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Starting with Chief Justice John Marshall and continuing through to the present Supreme Court, the story of Indian sovereignty has been consistent—it exists only in the most diminished form. Some reasons for this have been premised on the incapacity of Indians to self-govern; others on theories of federalism; while still others on the ambitions of non-Indians. However, the factual premises behind the concept of diminished sovereignty are baseless—legal fictions about the conquest of Indians and their nature. These fictions originated in Chief Justice Marshall’s Indian Law Trilogy and should have vanished long ago when their original purposes were fulfilled, like …

Land Use And Water Supply, Susan Kelly, Joanne Hilton

Water Matters!

As New Mexico grows and develops, there is a continuing increase in water demand and the need to provide additional supplies. Recent studies estimate the current population of the State to be about two million people, and the population is expected to grow to approximately 3,400,000 by 2050. Regional water plans project water demands for 16 regions within New Mexico. The total projected new water use associated with population growth—the public water supply and associated commercial sectors, exclusive of agriculture, mining, or other industries—ranges from 280,000 to 380,000 acre-feet per year of new water supply needed in the next 40 …

U.S. Land-Based And Internet Gambling, Would You Bet On A Rosy Future, Joseph M. Kelly

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

You Can't Get There From Here: Igra Needs Reinvention Into A Relevant Statute For A Mature Industry, Antonia Cowan

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Cochiti Pueblo Tribal Court Handbook (2010), Tribal Law Journal Staff

Tribal Law Journal

This handbook helps take some of the mystery out of practicing in tribal courts. Without the necessary information to learn new rules and protocols many attorneys are understandably reluctant to practice in a new jurisdiction. As a result, tribal courts are underused or misused. This handbook is intended to help attorneys and advocates become more aware of the various individual tribal court systems and to learn their rules and protocol.