Here are the materials in Graham v. White (N.D. Okla.)
Oklahoma Federal Court Orders Immediate Release of Native Convict from State Custody
Author: Matthew L.M. Fletcher
D.C. Circuit Rejects Challenge to Seminole Gaming Compact
Here is the opinion in West Flagler Associates Ltd. v. Haaland.
Briefs are here.
Greg Ablavsky on Akhil Amar’s Unusable History
Gregory Ablavsky has published “Akhil Amar’s Unusable Past” in the Michigan Law Review.
Alex Pearl on ICWA in the Multiverse
M. Alexander Pearl has published “The Indian Child Welfare Act in the Multiverse” in the Michigan Law Review.
Seventh Circuit Affirms Immunity of LCO Health Care Center and Officials
Arizona Federal Court Holds Business 51% Owned by Navajo Company Not Immune from Title VII Suit
Here are the materials in Tsosie v. NTUA Wireless LLC (D. Ariz.):
Tenth Circuit Decides Hooper v. City of Tulsa . . . Hooper 7, Tulsa 0
Here is the opinion in Hooper v. City of Tulsa.
Michael Doran on the Implications of Oklahoma v. Castro-Huerta
Michael Doran has posted “Tribal Sovereignty Preempted,” forthcoming in the Brooklyn Law Review, on SSRN. Here is the abstract:
In June of 2022, the U.S. Supreme Court held in Oklahoma vs. Castro-Huerta that a state may prosecute a non-Indian for a crime committed against an Indian within Indian country. That decision effectively overruled Worcester vs. Georgia, an 1832 landmark case in which Chief Justice Marshall said that state law “can have no force” in Indian country. Although the conventional wisdom sees Castro-Huerta as a radical departure from first principles of federal Indian law, I argue that it is the natural – although deeply deplorable – next step in a long line of Supreme Court decisions expanding state governmental authority within Indian country. Additionally, this line mirrors a separate line restricting tribal governmental authority within Indian country. Through a critical examination of these decisions, I show how the Supreme Court over the last half century has systematically privileged state interests and the interests of individual non-Indians over tribal interests and that, in so doing, the Court has arrogated to itself the political function of defining tribal sovereignty. I argue that Congress should reject the Court’s relentless subordination of Indian interests to non-Indian interests and reassert its role in defining and defending a robust conception of tribal sovereignty.
New Anishinaabe Student Scholarship on International Atrocity Crimes and Canadian Boarding Schools
Alyssa Couchie has published “ReBraiding Frayed Sweetgrass for Niijaansinaanik: Understanding Canadian Indigenous Child Welfare Issues as International Atrocity Crimes” in the Michigan Journal of International Law.
Here is the abstract:
The unearthing of the remains of Indigenous children on the sites of former Indian Residential Schools (“IRS”) in Canada has focused greater attention on anti-Indigenous atrocity violence in the country. While such increased attention, combined with recent efforts at redressing associated harms, represents a step forward in terms of recognizing and addressing the harms caused to Indigenous peoples through the settler-colonial process in Canada, this note expresses concern that the dominant framings of anti-Indigenous atrocity violence remain myopically focused on an overly narrow subset of harms and forms of violence, especially those committed at IRSs. It does so by utilizing a process-based understanding of atrocity and genocide that helps draw connections between familiar, highly visible, and less recognized forms of atrocity violence, which tend to be overlapping and mutually reinforcing in terms of their destructive effects. This process-based understanding challenges the neocolonial, racist, and discriminatory attitudes reflected in the drafting and interpretation of the Genocide Convention and other atrocity laws that ignore the lived experiences of subjugated groups. Utilizing this approach, this note argues that, as applied to Indigenous populations, Canada’s longstanding discriminatory child welfare practices and policies represent an overlooked process of anti-Indigenous atrocity violence. Only by understanding current child welfare challenges facing Indigenous communities as interwoven with longstanding anti-Indigenous atrocity processes, such as the IRS system, can we understand what is at stake for affected communities and fashion appropriate remedies in international and domestic law.
New Scholarship on #LandBack and Federal Public Lands
Audrey Glendenning, Martin Nie & Monte Mills have published “Some Land Back: The Transfer of Federal Public Lands to Indian Tribes since 1970” in the Natural Resources Journal.
The abstract:
Federal public lands in the United States were carved from the territories of Native Nations and, in nearly every instance, required that the United States extinguish pre-existing aboriginal title. Following acquisition of these lands, the federal government pursued various strategies for them, including disposal to states and private parties, managing lands to allow for multiple uses, and conservation or protection. After over a century of such varied approaches, the modern public landscape is a complex milieu of public and private interests, laws and policies, and patchwork ownership patterns. This complexity depends on—and begins with—the history of Indigenous dispossession but subsequent developments have created additional layers of complication. Recently, a broad social movement, captured succinctly by the social media hashtag “#Landback” and including some American Indian tribes, has begun calling for the restoration of the nation’s lands to Native ownership, including the transfer of all public lands to tribal hands. This article aims to contextualize and assess the more recent history of the transfer of federal public lands to Indian tribes, which has often taken the form of the United States transferring such lands into trust ownership for the benefit of a particular tribe. The article is the first comprehensive collection and analysis of 44 statutes enacted by Congress from 1970 to 2020 that transfer ownership interests in public lands to federally-recognized Indian tribes. These statutes are bookended by the return of Blue Lake to Taos Pueblo in New Mexico (1970) and the return of the National Bison Range to the Confederated Salish and Kootenai Tribes in Montana (2020). Analysis of these laws surfaces common themes and provisions related to the political dynamics of such congressional actions and the terms of post-transfer tribal or federal management. In particular, the article relies on four primary case studies to provide background, context, and detail in illustrating these themes : (1) Blue Lake on the Carson National Forest to Taos Pueblo, (2) the Western Oregon Tribal Fairness Act, (3) Chippewa National Forest land to the Leech Lake Band of Ojibwe in Minnesota, and (4) the National Bison Range to the Confederated Salish and Kootenai Tribes in Montana. These examples are representative of the larger catalog of transfer statutes and demonstrate the variation and complexity associated with each individual transfer situation. Hopefully, this first-ever collection of these laws will provide a practical grounding and depth of understanding for those considering or advocating for “#Landback.” More broadly, these examples and the common themes that tie them together raise important questions about the historical and continuing patterns of public land ownership and control.
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