Lewis V. Clarke,
2017
Alexander Blewett III School of Law at the University of Montana
Lewis V. Clarke, Lillian M. Alvernaz
Public Land & Resources Law Review
The nation to nation relationship between tribes and the federal government is unique. Within that relationship, the federal government acknowledges and respects tribal sovereignty. An important aspect of sovereignty is sovereign immunity. Lewis v. Clarke confronts the applicability of sovereign immunity through an extension of tribal sovereignty over an employee defendant. After having heard oral argument, the United States Supreme Court could either reaffirm or severely limit the applicability of tribal sovereign immunity to “arms” of a tribe. While the lower court analyzed tribal sovereign immunity by considering the damages sought, the Supreme Court opinion portends to extend far beyond …
We Need Protection From Our Protectors: The Nature, Issues, And Future Of The Federal Trust Responsibility To Indians,
2017
Rey-Bear McLaughlin, LLP
We Need Protection From Our Protectors: The Nature, Issues, And Future Of The Federal Trust Responsibility To Indians, Daniel I.S.J. Rey-Bear, Matthew L.M. Fletcher
Michigan Journal of Environmental & Administrative Law
The federal trust responsibility to Indians essentially entails duties of good faith, loyalty, and protection. While often thought of as unique to federal Indian policy, it developed from and reflects common law principles of contracts, property, trusts, foreign relations/international law, and constitutional law. However, several issues preclude a greater understanding and implementation of the federal trust responsibility. These include Executive Branch efforts to avoid liability, neocolonial judicial activism, and episodic congressional attention. Enactment of legislation to reaffirm and modernize the federal trust responsibility through greater self-determination, integration, elevation, oversight, and funding should help overcome these issues to improve federal Indian …
San Manuel'S Second Exception: Identifying Treaty Provisions That Support Tribal Labor Sovereignty,
2017
University of Michigan Law School
San Manuel'S Second Exception: Identifying Treaty Provisions That Support Tribal Labor Sovereignty, Briana Green
Michigan Journal of Environmental & Administrative Law
Inspired by the holding in WinStar World Casino, this Note considers the potential for tribes to make treaty-based arguments when facing the threat of National Labor Relations Board jurisdiction. This Note presents the results of a survey of U.S. government treaties with Native Americans to identify those treaties with language similar to that interpreted by the Board in WinStar World Casino. The survey identified four treaties and four tribes that could make treaty-based arguments like those made in Winstar World Casino: the Confederated Tribes of the Umatilla Indian Reservation, the Muscogee (Creek) Nation, the Seminole Nation of …
Exploring Alternatives To The "Consultation Or Consent" Paradigm,
2017
University of Michigan Law School
Exploring Alternatives To The "Consultation Or Consent" Paradigm, Jason Searle
Michigan Journal of Environmental & Administrative Law
The Dakota Access Pipeline brought the question of what adequate tribal consultation requires to the forefront. Some would argue that consultation is a weak standard and that only adopting a new standard of free, prior, and informed consent can guarantee tribes greater control and respect. However, the “consultation or consent” paradigm does not take into account important sources of law that do not fit under “consultation” or “consent” and yet could be valuable in strengthening tribes’ claims in the absence of a consent standard.
Whose Standards Control? Maine V. Mccanhy And The Federal, State, And Tribal Battle Over Water Quality Regulation,
2017
University of Connecticut School of Law
Whose Standards Control? Maine V. Mccanhy And The Federal, State, And Tribal Battle Over Water Quality Regulation, Joseph Paul Mortelliti
Michigan Journal of Environmental & Administrative Law
This Note considers the longstanding clash between the United States government and state governments over the management of intrastate waters through the lens of Maine v. McCarthy, an ongoing federal lawsuit. McCarthy confronts whether the United States Environmental Protection Agency can require state water quality standards to specifically safeguard the health and cultural practices of Maine’s Indian tribes, particularly sustenance fishing. A panoply of legal and political factors gave rise to and shaped the course of the litigation, ranging from tribal sovereignty to agency discretion and political gamesmanship. After evaluating the litigants’ arguments and examining previous regulatory collisions between …
Indian Country Complexities And The Ambiguous State Of Marijuana Policy In The United States,
2017
University at Buffalo School of Law (Student)
Indian Country Complexities And The Ambiguous State Of Marijuana Policy In The United States, Lauren Adornetto
Buffalo Law Review
No abstract provided.
Returning To The Tribal Environmental "Laboratory": An Examination Of Environmental Enforcement Techniques In Indian Country,
2017
University of Kansas School of Law
Returning To The Tribal Environmental "Laboratory": An Examination Of Environmental Enforcement Techniques In Indian Country, Elizabeth Ann Kronk Warner
Michigan Journal of Environmental & Administrative Law
Governments, including tribes, need to protect one of humankind’s most valuable resources: the environment. In addition to environmental regulations, effective enforcement mechanisms are key to successful efforts to protect the environment. While much has been written about the environmental enforcement mechanisms of states and the federal government, little scholarly attention has been paid to how tribal governments are working to protect their environments. Given that there are 567 federally recognized tribes and approximately 56.2 million acres held in trust for tribes in the United States, such oversight is significant. This Article fills a scholarly void with a description of environmental …
Indigenous Mental Health: Imagining A Future Where Action Follows Obligations And Promises,
2017
Schulich School of Law, Dalhousie University
Indigenous Mental Health: Imagining A Future Where Action Follows Obligations And Promises, Constance Macintosh
Articles, Book Chapters, & Popular Press
This article considers what it would mean if Canada fulfilled select existing commitments and obligations concerning the mental health needs of Indigenous peoples, as identified through current programs and recent jurisprudence: that is, where would we be if Canada carried through on existing commitments? After identifying the role of law in perpetuating poor mental well-being, it assesses programs for First Nations and Inuit peoples and determines they are unlikely to be effective without operational changes and responsive funding. The article then turns to the situation of Metis and non-status First Nations and the implications ofDaniels v. Canada for changing …
Indigenous Blockades And The Power To Speak The Law: From Settler Colonialism To Indigenous Resurgence,
2017
Osgoode Hall Law School of York University
Indigenous Blockades And The Power To Speak The Law: From Settler Colonialism To Indigenous Resurgence, Christopher Eric Jon Albinati
LLM Theses
This thesis traces tensions between pluralism, elimination and resistance in the centuries-old narrative underlying the uncertain legal foundations of Crown sovereignty in the territory now known as Canada. The first half of the work applies the emerging literature of settler colonialism to a close reading of a selection of leading scholarship on Aboriginal rights jurisprudence to identify whether the Canadian courts are reproducing elements of settler colonialism in their decisions. The second half of this work draws on the literature of Indigenous resurgence, blockades, jurisdiction and the rule of law to construct a framework for examining juridical sites where conflicting …
Comment Re Rule 10 Of The Minnesota General Rules Of Practice For The District Courts,
2017
University of New Mexico - School of Law
Comment Re Rule 10 Of The Minnesota General Rules Of Practice For The District Courts, Kevin Washburn
Faculty Scholarship
No abstract provided.
Legacy In Paradise: Analyzing The Obama Administration’S Efforts Of Reconciliation With Native Hawaiians,
2017
William S. Richardson School of Law, University of Hawai’i at Mānoa
Legacy In Paradise: Analyzing The Obama Administration’S Efforts Of Reconciliation With Native Hawaiians, Troy J.H. Andrade
Michigan Journal of Race and Law
This Article analyzes President Barack Obama’s legacy for an indigenous people—nearly 125 years in the making—and how that legacy is now in considerable jeopardy with the election of Donald J. Trump. This Article is the first to specifically critique the hallmark of Obama’s reconciliatory legacy for Native Hawaiians: an administrative rule that establishes a process in which the United States would reestablish a government-to-government relationship with Native Hawaiians, the only indigenous people in America without a path toward federal recognition. In the Article, Obama’s rule—an attempt to provide Native Hawaiians with recognition and greater control over their own affairs to …
“Why Should I Go Vote Without Understanding What I Am Going To Vote For?” The Impact Of First Generation Voting Barriers On Alaska Natives,
2017
Wilson Elser LLP
“Why Should I Go Vote Without Understanding What I Am Going To Vote For?” The Impact Of First Generation Voting Barriers On Alaska Natives, James Thomas Tucker, Natalie A. Landreth, Erin Dougherty Lynch
Michigan Journal of Race and Law
This article explores the many forms of discrimination that have persisted in Alaska, the resulting first generation voting barriers faced by Alaska Native voters, and the two contested lawsuits it took to attain a measure of equality for those voters in four regions of Alaska: Nick v. Bethel and Toyukak v. Treadwell. In the end, the court’s decision in Toyukak came down to a comparison of just two pieces of evidence: (1) the Official Election Pamphlet that English-speaking voters received that was often more than 100 pages long; and (2) the single sheet of paper that Alaska Native language …
Indian Treaty Fishing Rights And The Environment: Affirming The Right To Habitat Protection And Restoration,
2017
University of Washington School of Law
Indian Treaty Fishing Rights And The Environment: Affirming The Right To Habitat Protection And Restoration, Michael C. Blumm
Washington Law Review
In 1970, several tribes in the Pacific Northwest, along with their federal trustee, sued the state of Washington claiming that numerous state actions violated their treaty rights, which assured them “the right of taking fish in common with” white settlers. The tribes and their federal trustee maintained that the treaties of the 1850s guaranteed the tribes: (1) a share of fish harvests for subsistence, cultural, and commercial purposes; (2) inclusion of hatchery fish in that harvest share; and (3) protection of the habitat necessary for the salmon that were the basis of the treaty bargain and the peaceful white settlement …
Valuing Sacred Tribal Waters Within Prior Appropriation,
2017
University of Montana School of Law
Valuing Sacred Tribal Waters Within Prior Appropriation, Michelle Bryan
Natural Resources Journal
Throughout the world water plays a central role in the spirituality of indigenous peoples. Focusing on the American West, this article first describes how tribal water needs touch upon the sacred and then explains how both federal law and state prior appropriation doctrine fail to adequately protect these important sacred views of water. Pivoting away from the classic federal law arguments, the article then advocates for an evolution in state water law regimes to provide yet unrecognized protections for tribal sacred waters. Because international law plays an increasing role in this issue, the article also explores case studies from Ireland, …
Pueblo Indian Water Rights: Charting The Unknown,
2017
University of New Mexico
Pueblo Indian Water Rights: Charting The Unknown, Richard W. Hughes
Natural Resources Journal
This article examines the so-far-unsuccessful efforts to judicially define and quantify the water rights appurtenant to the core land holdings of the 19 New Mexico Pueblos, many of whose lands straddle the Rio Grande. It explains that the Tenth Circuit Court of Appeals has squarely held that Pueblo water rights are governed by federal, not state law, and are prior to those of any non-Indian appropriator, but also that the Tenth Circuit acknowledged that it could not say how those rights should be characterized. Part I of the article examines the course of the cases that have sought to achieve …
Standing Rock Sioux Tribe V. U.S. Army Corps Of Engineers,
2017
Alexander Blewett III School of Law at the University of Montana
Standing Rock Sioux Tribe V. U.S. Army Corps Of Engineers, Jody D. Lowenstein
Public Land & Resources Law Review
The Standing Rock Sioux’s effort to enjoin the U.S. Army Corps of Engineers’ permitting of an oil pipeline was stifled by the United States District Court of the District of Columbia. In denying the preliminary injunction, the court held that the Tribe failed to show that the Corps violated the National Historic Preservation Act, and that the Tribe’s belated effort to litigate was futile after failing to participate in the consultation process.
Waiting For Gluskabe: An Examination Of Maine's Colonialist Legacy Suffered By Native American Tribes Under The Maine Indian Claims Settlement Act Of 1980,
2017
University of Maine School of Law
Waiting For Gluskabe: An Examination Of Maine's Colonialist Legacy Suffered By Native American Tribes Under The Maine Indian Claims Settlement Act Of 1980, Joseph G.E. Gousse
Maine Law Review
Legends of the Wabanaki people tell of a mythical demigod named Gluskabe. Immortalized through the cultural traditions of the Wabanaki—from the Mi’kmaq, Abenaki, and Passamaquoddy to the Maliseet and the Penobscot—Gluskabe appears as an integral component of each tribe’s variation of the Creation Myth, as well as numerous other tales and stories. Most prominently, Gluskabe is known for his role in creating the Penobscot River and divining proportion and harmony in the natural world, using his power to reduce the size of the once-giant land animals to establish the first village, legend holds that Gluskabe retired to the southernmost portion …
Complexity's Shadow: American Indian Property, Sovereignty, And The Future,
2017
University of Nebraska College of Law
Complexity's Shadow: American Indian Property, Sovereignty, And The Future, Jessica A. Shoemaker
Michigan Law Review
This Article offers a new perspective on the challenges of the modern American Indian land tenure system. While some property theorists have renewed focus on isolated aspects of Indian land tenure, including the historic inequities of colonial takings of Indian lands, this Article argues that the complexity of today’s federally imposed reservation property system does much of the same colonizing work that historic Indian land policies—from allotment to removal to termination—did overtly. But now, these inequities are largely overshadowed by the daunting complexity of the whole land tenure structure. This Article introduces a new taxonomy of complexity in American Indian …
Why The Religious Freedom Restoration Act Cannot Protect Sacred Sites,
2017
PMSA Group
Why The Religious Freedom Restoration Act Cannot Protect Sacred Sites, Timothy A. Wiseman
American Indian Law Journal
No abstract provided.
Assessing Political Economy In Native American Nations,
2017
Hobbs Strauss Dean & Walker, LLP
Assessing Political Economy In Native American Nations, W. Gregory Guedel Ph.D, Jd
American Indian Law Journal
No abstract provided.
