Kevin Morrow Bridging the Jurisdictional Void: Cross-deputization Agreements in Indian Country 94 North Dakota Law Review 65 (2019) If I give you authority on the Res, we'll have to get everything we need in less than two weeks. 'Cause that's how long I'd have before I'm drummed out of a job. This Article examines cross-deputization agreements in Indian Country, focusing on the relationship between tribes and state and local governments and the impact cross-deputization... 2019
Curtis G. Berkey , Scott W. Williams California Indian Tribes and the Marine Life Protection Act: the Seeds of a Partnership to Preserve Natural Resources 43 American Indian Law Review 307 (2019) The United States Supreme Court long ago described states as the deadliest enemies of Indian tribes. California's relationship with the Indian tribes within its borders has too often reflected the truth of that characterization. In recent years, however, there are promising signs that California and Indian tribes have taken a new direction. If... 2019
Curtis G. Berkey , Scott W. Williams CALIFORNIA INDIAN TRIBES AND THE MARINE LIFE PROTECTION ACT: THE SEEDS OF A PARTNERSHIP TO PRESERVE NATURAL RESOURCES 43 American Indian Law Review 307 (2019) The United States Supreme Court long ago described states as the deadliest enemies of Indian tribes. California's relationship with the Indian tribes within its borders has too often reflected the truth of that characterization. In recent years, however, there are promising signs that California and Indian tribes have taken a new direction. If... 2019
Monte Mills, Counsel of Record, Associate Professor, Alexander Blewett III School of Law at the University of Montana, Missoula, MT 59812, (406) 243-2544,, Counsel for Amici Curiae Indian Law Professors, September 11, 2018 Clayvin B. Herrera, Petitioner, V. State of Wyoming, Respondent 40 Public Land & Resources Law Review 15 (2019) C1-2TABLE OF CONTENTS Table of Authorities. 17 Interest of Amici Curiae. 20 Summary of the Argument. 20 Argument. 22 I. As the Supreme Law of the Land, Indian Treaties Establish the Central Tenets of Federal Indian Law. 22 II. The Court Developed and Relies on Long-standing Principles of Interpretation for Analyzing Indian Treaties. 23 III. The... 2019
Michelle Snoberger Cleaning the Indian River with Common Law 34 Journal of Land Use & Environmental Law 341 (Spring, 2019) I. Introduction. 341 II. Background. 343 A. Background on the Indian River Lagoon. 343 B. Background on Septic Tanks. 344 III. Law. 345 A. Introduction to Common Law of Nuisance. 345 B. Statutory Law. 347 C. Case Law. 349 1. Palazzolo. 349 2. Orlando Sports Stadium. 351 3. National Container. 352 4. Penn v. City of Lakeland. 353 5. Remedies... 2019
Awi Mona (Chih-Wei Tsai) Conceptualizing Indigenous Historical Justice Toward a Mutual Reconciliation with State in Taiwan 28 Washington International Law Journal 653 (July, 2019) Transitional justice has received considerable attention in recent years in Taiwan. Despite all this attention, transitional justice is an issue that remains incomplete without addressing justice for indigenous peoples. This paper aims to focus on the essential characteristics of indigenous justice against the successive alien regimes.... 2019
Hillary M. Hoffmann Congressional Plenary Power and Indigenous Environmental Stewardship: the Limits of Environmental Federalism 97 Oregon Law Review 353 (2019) Introduction. 354 I. Plenary Power over Indian Affairs: A Congressional Exercise of Authority Lacking a Constitutional Foundation. 358 A. Origins: An Unenumerated Power Born of Necessity and Circumstance. 358 B. The Scope of the Modern Plenary Power Doctrine. 371 C. Inherent Flaws in the Plenary Power Doctrine. 377 1. Constitutional Deficiencies.... 2019
Evan P. Dahdah Constitutional Law: Bert J. Harris Act 48 Stetson Law Review 690 (Summer, 2019) In order to assert a claim under the Bert J. Harris, Jr. Property Rights Protection Act (the Harris Act), a property owner must demonstrate that government action, short of a taking, inordinately burdened an existing use of the property. An existing use may be proven by showing that the applicable zoning ordinance allows the property to be... 2019
Robert J. Miller Creating Sustainable Economic Development on Indian Reservations Is an "Access to Justice" Issue 27 Journal of Affordable Housing & Community Development Law 493 (2019) Very few of the 300 Indian reservations in the United States have functioning economies in which reservation residents can be employed, spend money, and find adequate housing. In contrast, almost all reservation residents have to travel to distant cities to find banks, businesses, higher education, livable wage jobs, and adequate housing. This... 2019
Jennie Bricker Defining 'Indian' 79-MAY Oregon State Bar Bulletin 28 (May, 2019) Columbia Park occupies 450 acres along the Columbia River in Tri-Cities, Wash. It hosts an annual event called the Water Follies, which includes a hydroplane race. On July 28, 1996, Will Thomas and Dave Deacy were wading along the river bank near Kennewick, sipping from cans of Busch Light and looking to avoid the race's entrance fee. Thomas... 2019
Alexis Zendejas Deserving a Place at the Table: Effecting Change in Substantive Environmental Procedures in Indian Country 9 Arizona Journal of Environmental Law & Policy 90 (Spring, 2019) This note explores how tribal-federal relations have impacted environmental justice efforts in domestic pipeline construction in and around Indian Country. The impact these poor relations have had on indigenous peoples has the potential to adversely affect indigenous people and their reservation and ancestral lands. This note discusses how the... 2019
L. Maaike Helmus , Sara Johnson , Andrew J. R. Harris , Simon Fraser University, Correctional Service of Canada, Ottawa, Ontario, Canada, Forensic Assessment Group, Ottawa, Ontario, Canada Developing and Validating a Tool to Predict Placements in Administrative Segregation: Predictive Accuracy with Inmates, Including Indigenous and Female Inmates 25 Psychology, Public Policy, and Law 284 (November, 2019) The last 15 years have witnessed considerable concern regarding the use of segregation. Attempts to reduce segregation would benefit from being able to identify which inmates are at greatest risk for being placed in segregation. The goal of the current research project was to develop an actuarial scale to assess the risk of being placed in... 2019
James Thomas Tucker Ensuring Natives Count 55-APR Arizona Attorney 38 (April, 2019) The 2020 Census is one of the foremost civil rights issues in Indian Country. It serves as the keystone for our representative government. It determines federal apportionment under Article I, Section 2 of the U.S. Constitution, as well as state and local apportionment in non-tribal elections to meet constitutional equal population (one person, one... 2019
Bethany Sullivan Environmental Justice in Indian Country 55-APR Arizona Attorney 22 (April, 2019) The term environmental justice is evocative but elusive, subject to a broad array of interpretations and rallying cries. The U.S. Environmental Protection Agency defines environmental justice as the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development,... 2019
Joseph Kowalski Environmentalism Isn't New: Lessons from Indigenous Law 26 Buffalo Environmental Law Journal 15 (2018-2019) The much-overlooked laws and lifeways of Indigenous people show that concepts of environmental sustainability have long been a part of the human tradition. By studying the Indigenous jurisprudence of societies that maintained these traditions into the modern era, much can be learned. Rather than making laws in regards to the land, the land itself... 2019
Adam Gerken Examining the Administrative Unworkability of Final Agency Action Doctrine as Applied to the Native American Graves Protection and Repatriation Act 8 Michigan Journal of Environmental & Administrative Law 477 (Spring, 2019) The application of the Administrative Procedure Act (APA) to the Native American Graves Protection and Repatriation Act (NAGPRA) creates unique practical and doctrinal results. When considering the application of the current law concerning judicial review of final agency action under the APA to NAGPRA, it is evident that the law is... 2019
Matthew L.M. Fletcher Failed Protectors: the Indian Trust and Killers of the Flower Moon 117 Michigan Law Review 1253 (April, 2019) Killers of the Flower Moon: The Osage Murders and the Birth of the FBI. By David Grann. New York: Doubleday. 2017. P. 291. Cloth, $28.95; paper, $16.95. David Grann's Killers of the Flower Moon: The Osage Murders and the Birth of the FBI details a story that is widely known in Indian country but that has never before penetrated mainstream American... 2019
Maggie Blackhawk Federal Indian Law as Paradigm Within Public Law 132 Harvard Law Review 1787 (May, 2019) C1-3CONTENTS L1-2Introduction . L31791 I. Federal Indian Law as Paradigm. 1800 A. Colonialism and Constitutional History. 1801 B. Colonialism and Federal Indian Law as Paradigm Case. 1803 II. The Centrality of Federal Indian Law to Public Law. 1806 A. The Treaty Power. 1809 B. Separation of Powers. 1815 1. Federalism. 1816 2. Judicial Review. 1819... 2019
Neoshia R. Roemer Finding Harmony or Swimming in the Void: the Unavoidable Conflict Between the Interstate Compact on the Placement of Children and the Indian Child Welfare Act 94 North Dakota Law Review 149 (2019) The Indian Child Welfare Act is a federal statute that applies to Indian children who are at the center of child welfare proceedings. While the Indian Child Welfare Act provides numerous protections to Indian children, parents, and tribes, many of these cases play out in state courts which are also required to apply their own requisite, relevant... 2019
Meredith N. Healy Fluid Standing: Incorporating the Indigenous Rights of Nature Concept into Collaborative Management of the Colorado River Ecosystem 30 Colorado Natural Resources, Energy & Environmental Law Review 327 (Summer, 2019) C1-2Table of Contents Introduction. 328 I. Flow: Increasing Worldwide Recognition of the Legal Rights of Nature. 330 A. Constitutional Recognition of the Rights of Nature: The Vilcabamba River in Ecuador. 330 B. Legislative Recognition of the Rights of Nature: The Whanganui River in New Zealand. 332 II. Ebb: Decades of Resistance--Despite Some... 2019
Michael Maruca From Exploitation to Equity: Building Native-owned Renewable Energy Generation in Indian Country 43 William and Mary Environmental Law and Policy Review 391 (Winter, 2019) Indian country contains abundant renewable energy resources, and harnessing such resources is vitally important for national climate change mitigation efforts. Shifting the electric grid towards wind and solar generation also carries local environmental and health benefits, increases energy independence, and serves national security interests. For... 2019
Alex Tallchief Skibine From Foundational Law to Limiting Principles in Federal Indian Law 80 Montana Law Review 67 (Winter, 2019) In a noted article, the late Philip Frickey described how federal Indian law, since its inception, has been exceptional in the sense of being distinctive compared to other areas of American Public Law. The foundational principle animating this exceptionalism is Chief Justice Marshall's description of Indian nations as domestic dependent nations... 2019
E. Barrett Ristroph Fulfilling Climate Justice and Government Obligations to Alaska Native Villages: What Is the Government Role? 43 William and Mary Environmental Law and Policy Review 501 (Winter, 2019) Climate change has had significant impacts on lands and communities across the United States, and particularly on Alaska Native Villages (ANVs). These Arctic and sub-Arctic indigenous communities, which are often remote and rural, depend on the land and water for their nutritional and cultural survival. My research draws from 153 interviews and... 2019
Dessa Reimer HERRERA v. WYOMING 42-DEC Wyoming Lawyer 20 (December, 2019) In May 2019, the U.S. Supreme Court decided Clayvin Herrera v. Wyoming, 139 S.Ct. 1686 (2019). The case is remarkable not only for its procedural history (how often do Wyoming district court decisions go up on direct appeal to the U.S. Supreme Court?), but also for its holding--that the Crow Tribe's hunting right survived Wyoming's statehood, and... 2019
James D. Diamond In the Aftermath of Rampage Shootings: Is Healing Possible? Hard Lessons from the Red Lake Band of Chippewa Indians and Other Indigenous Peoples 11 Georgetown Journal of Law & Modern Critical Race Perspectives 101 (Fall, 2019) This Article produces insights, ideas, and findings which link mass shootings and communal responses in the United States and on American Indian reservations. This Article compares the aftermath of these tragedies in non-indigenous communities with the responses when the tragedies have occurred in certain Native American communities, including... 2019
Alex Tallchief Skibine INCORPORATION WITHOUT ASSIMILATION: LEGISLATING TRIBAL JURISDICTION OVER NONMEMBERS 67 UCLA Law Review Discourse 166 (2019) For the last forty years the U.S. Supreme Court has been engaged in a measured attack on the sovereignty of Indian tribes when it comes to tribal court jurisdiction over people who are not members of the tribe asserting that jurisdiction. The U.S. Congress has already enacted legislation partially restoring some tribal courts' criminal jurisdiction... 2019
  Indian Law Special Focus 55-APR Arizona Attorney 16 (April, 2019) Try to describe Indian law to a colleague and you may find yourself chatting for a long time. That's because the label appears simple, but it encompasses a vast expanse of legal issues involving every area of human endeavor. Each of those issues is informed through a unique history and requires an understanding of sovereign nations, conflict of... 2019
  Indian Tribe's Corporation Not Liable for the Employment Tax Liabilities of its Professional Staffing Division 46 Corporate Taxation 34 (July/August, 2019) The Tax Court, in Blue Lake Rancheria Economic Development Corporation, 152 TC No. 5 (2019), has held that the corporation of an Indian Tribe was not liable for the employment tax liabilities of its corporate division. The charter of the Indian Tribe's corporation allowed it to create subdivisions for the purpose of legally segregating the assets... 2019
The Honorable Russell Brown Indigenous Law at the Supreme Court of Canada 40 Public Land & Resources Law Review Rev. 1 (2019) First, let me thank Dean Kirgis for his kind invitation to visit the University of Montana, and to Professors Zellmer, Bryan and Mills, and their colleagues for all the work they have done to make this visit so very rewarding. I actually feel very much at home in Montana. I developed something of a love affair with this state when I was 12 years... 2019
Sergio Puig International Indigenous Economic Law 52 U.C. Davis Law Review 1243 (February, 2019) Scholarship on the links between business and human rights is widespread. However, the specific ways in which globalization accommodates the economically marginalized and those who are likely most vulnerable to its negative effects has received scant attention. The increasingly obvious manifestations of discontent over the effects of... 2019
Affie B. Ellis Invisible No More 42-DEC Wyoming Lawyer 30 (December, 2019) In spring 2019, high school track star, Rosalie Fish, won three gold medals in a Washington State track championship. she crossed the finish line with a red handprint painted over her mouth and the letters, MMIW, standing for Missing and Murdered Indigenous Women, painted on her leg. She got the idea from another runner, Jordan Marie Daniel,... 2019
Bill Piatt , Moises Gonzales , Katja Wolf Law Schools Harm Genízaros and Other Indigenous People by Misunderstanding Aba Policy 49 New Mexico Law Review 236 (Summer, 2019) Law schools justifiably seek to enroll a diverse student body in order to enrich the academic experience and environment, and to provide attorneys who will serve all segments of our society. American law schools enjoy the constitutional right to maintain such diversity. Indeed, accreditation standards promulgated by the American Bar Association... 2019
Norika L. Kida Betti , Cameron Ann Fraser Michigan Indian Family Preservation Act at Seven Years 98-NOV Michigan Bar Journal 32 (November, 2019) In January 2013, Michigan enacted the Michigan Indian Family Preservation Act (MIFPA), a state version of the Indian Child Welfare Act (ICWA). Passed in 1978, ICWA is a remedial statute designed to protect native families and ensure that native children remain connected to their communities through heightened protections and burdens of proof in... 2019
James Dohnalek Native American Religious Accommodations, National Parks, and the Cutter Test 15 University of Saint Thomas Law Journal 715 (Spring, 2019) Religious accommodations can be a highly controversial subject in today's society. Whether these accommodations take the form of the government allowing sacramental use of an otherwise illegal drug to certain religious adherents, or exempting corporations on religious grounds from the contraceptive mandate in the Affordable Care Act, there is no... 2019
Michael D. McNally Native American Religious Freedom as a Collective Right 2019 Brigham Young University Law Review 205 (2019) Introduction: The Strength of Standing Rock and the Weakness of the Law. 206 A. Structure of Argument. 213 B. Timeliness of Argument in Light of Hobby Lobby. 215 I. Judicial Misrecognition of Native American Religious Freedom Claims. 218 A. First Amendment. 219 B. Religious Freedom Restoration Act. 220 C. Native Spirituality and the Subversion of... 2019
Lorinda Riley, SJD Native Hawaiians and the New Frontier of the Indian Civil Rights Act 26 Asian American Law Journal 168 (2019) Introduction. 168 I. The Impact of the Indian Civil Rights Act. 171 A. Born of Two-Policy Eras. 171 B. ICRA: The Good, the Bad, and the Ugly. 175 II. Native Hawaiian Sovereignty in the Modern Era. 180 A. From the Kingdom of Hawai'i to Annexation. 180 B. Federal Recognition: The Search for and the Obstacles to Overcome. 183 III. ICRA and Native... 2019
Hon. Marcy L. Kahn New York State's Recent Judicial Collaboration with Indigenous Partners: the Story of New York's Federal-state-tribal Courts and Indian Nations Justice Forum 14 Judicial Notice 20 (2019) When then-Chief Judge Judith Kaye asked me in 2002 to lead the effort to establish a forum of the state and Indian tribal courts in New York, I enthusiastically embraced the chance to return to work which had long been an interest of mine. This interest derived from three experiences. First, I grew up in Arizona, and attended a public high school... 2019
Hon. Carrie Garrow New York's Quest for Jurisdiction over Indian Lands 14 Judicial Notice Notice 4 (2019) In the middle of the 20 Century, Congress passed laws granting New York State concurrent criminal and civil adjudicatory jurisdiction over Indian lands in the state. Far from being innocuous, these laws capped off nearly 200 years of disputes. The legislation on its face appears to be a simple grant of jurisdiction. But what the legislation does... 2019
Matthew L.M. Fletcher On Indian Children and the Fifth Amendment 80 Montana Law Review 99 (Winter, 2019) Many of my first memories revolve around my grandmother Laura Mamagona's apartment in Grand Rapids, Michigan. She shared the apartment with my uncle Crockett, who was a college student. Her apartment was the upstairs room of an old house on the side of a hill on College Street. My memories are mostly of domestic activities. Cooking. Sweeping.... 2019
Alix Rogers Owning Geronimo but Not Elmer Mccurdy: the Unique Property Status of Native American Remains 60 Boston College Law Review 2347 (November, 2019) Introduction. 2349 I. The Treatment of Native American Remains from Early America to 1989. 2355 II. The Treatment of Non-Native Human Remains in America. 2360 A. Collecting in the Name of Science. 2360 B. Collecting in the Name of Medicine. 2362 III. The Native American Graves Protection and Repatriation Act. 2365 A. Federal or Tribal Land &... 2019
Michael E. Benson Patent Litigators Playing Cowboys and Indians at the Ptab 94 Notre Dame Law Review Online 185 (2019) The high-stakes nature of patent litigation emboldens patent litigators to implement unusual litigation strategies. This Essay explores a novel application of tribal-sovereign-immunity protections to patent validity challenges in inter partes review (IPR) proceedings before the United States Patent and Trademark Office (USPTO). This Essay argues... 2019
John Mixon Patently Inconsistent: State and Tribal Sovereign Immunity in Inter Partes Review 93 Saint John's Law Review 233 (2019) From 2016 to 2017, the Patent Trial and Appeals Board (PTAB or the Board), an adjudicatory branch of the United States Patent and Trademark Office (USPTO), instituted five separate inter partes review (IPR) proceedings against patents owned by various state universities. Upon instituting these proceedings, the universities all moved to... 2019
Kendall McCoy Perhaps Congress Would, Perhaps Congress Should--why Match-e-be-nash-she-wish Band of Pottawatomi Indians V. Patchak and Carcieri V. Salazar must Be Legislatively Overridden to Protect the Ira Trust Acquisition Authority 43 American Indian Law Review 459 (2019) Land ownership allows for the preservation of distinct nationhood, making it central to the sovereignty of Indian tribes. Tribes have certain rights as distinct nations due to their legal status as separate governments that pre-exist the Constitution. They have inherent sovereignty as self-governing peoples. But because Indian tribes are domestic... 2019
Dayna Olson Protecting Native Women from Violence: Fostering State-tribal Relations and the Shortcomings of the Violence Against Women Act of 2013 46 Hastings Constitutional Law Quarterly 821 (Summer, 2019) Not until the abuse stopped around the fourth grade did [she] realize she wasn't the only child suffering at the hands of that assailant. At least a dozen other young girls had fallen victim to that same man. He was a man who was never arrested for his crimes, never brought to justice, and still walks free today, all because he committed these... 2019
Dayna Olson PROTECTING NATIVE WOMEN FROM VIOLENCE: FOSTERING STATE-TRIBAL RELATIONS AND THE SHORTCOMINGS OF THE VIOLENCE AGAINST WOMEN ACT OF 2013 46 Hastings Constitutional Law Quarterly 821 (Summer, 2019) Not until the abuse stopped around the fourth grade did [she] realize she wasn't the only child suffering at the hands of that assailant. At least a dozen other young girls had fallen victim to that same man. He was a man who was never arrested for his crimes, never brought to justice, and still walks free today, all because he committed these... 2019
Eduardo R.C. Capulong, Andrew King-Ries, Monte Mills 'Race, Racism, and American Law': a Seminar from the Indigenous, Black, and Immigrant Legal Perspectives 21 Scholar: St. Mary's Law Review on Race and Social Justice Just. 1 (2019) Introduction. 2 I. Our Approach: Themes, Goals, and Collaboration. 9 A. Common Threads and Themes. 9 B. Self-Disclosure, Objectivity, and Reflective Practice. 12 C. Collaboration. 17 D. Lawyering Skills. 19 II. The Class: Objectives, Schedule, and Assessments. 20 III. How the Class Unfolded: Issues and Related Events. 26 IV. Lessons Learned. 28... 2019
Timothy Sandefur Recent Developments in Indian Child Welfare Act Litigation: Moving Toward Equal Protection? 23 Texas Review of Law and Politics 425 (Spring, 2019) Introduction. 426 I. Brackeen: ICWA as a Race-Based Statute and an Intrusion on State Autonomy. 427 A. How the ICWA Operates. 427 1. Racial or Political Lines?. 427 2. State Autonomy over Family Law. 434 B. The Brackeen Court finds the ICWA Unconstitutional. 441 II. Depriving Indian Parents of the Right to Choose What Is Best for their Children.... 2019
Arvind Elangovan, Wright State University Rohit De, a People's Constitution: the Everyday Life of Law in the Indian Republic, Princeton, Nj: Princeton University Press, 2018. Pp. 312. $40.97 Hardcover (Isbn: 9780691192550) 37 Law and History Review 961 (November, 2019) Rohit De's long-gestating book has been anticipated by scholars around the world, and A People's Constitution does not disappoint. In contrast to both popular and some scholarly assumptions, De argues that the Indian constitution decisively made a difference to the lives of its citizens in the postcolonial period, especially in the Nehruvian years... 2019
JR Lanis, Fiammetta S. Piazza Sec Qualifies First Regulation A+ Offerings of Blockchain-native Digital Assets: Blockstack and Younow 61-OCT Orange County Lawyer 48 (October, 2019) On July 10, 2019, after months of abandoned and failed Regulation A+ applications by would-be cryptocurrency issuers, the U.S. Securities and Exchange Commission (SEC) qualified, for the first time, the offering of a digital native token under Regulation A+. While this offering by Blockstack Token LLC (Blockstack) is the first in this space to be... 2019
Omar Rana Similar Trails: a Comparison of the Legalized Discrimination of Indigenous Communities Paralleling the Rohingya of Myanmar and the Native Americans of the United States 20 Rutgers Race & the Law Review 175 (2019) If we want to solve a problem, we can't solve it if we continue to think the same way we were thinking when we created it. -Albert Einstein The brutality the Rohingya, an indigenous group of Myanmar, have faced leads one to ask, What can be done? Before addressing what can be done to stop the crisis, it must be examined why there is a crisis in... 2019
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