Here.
An excerpt:
A leading bird conservation organization—American Bird Conservancy (ABC)—has announced its intention to sue the Department of the Interior (DOI), charging DOI with multiple violations of federal law in connection with its December 9, 2013, final regulation that allows wind energy companies and others to obtain 30-year permits to kill eagles without prosecution by the federal government. The previous rule provided for a maximum duration of five years for each permit.
Here are the newest materials in Oglala Sioux Tribe v. Van Hunnik (D.S.D.):
We posted the motion to compel and the order to show case here.
89 Non-Party State Judges Response
95 DCT Order Granting Motion to Compel
Prior posts here (denial of motions to dismiss), and complaint here.
Here.
Nothing that you didn’t already know from Kate’s post Tuesday.
An excerpt:
He says the result could be that tribes think twice about investing money off the reservation.
“You can’t put it in your mattress,” he says. “But perhaps into overseas banks or something to that effect.”
Fletcher says it’s just one possible outcome. The court could also write a more limited decision. Fletcher says the least-likely outcome would be for the court to rule in favor of the Bay Mills Indian Community, which argues it is immune from lawsuit in this instance.
Here is the opinion in State Bar of Arizona v. Lang (Ariz. App.):
An excerpt:
Randy D. Lang, a nonmember of the State Bar of Arizona, was enjoined from practicing law in Arizona based on evidence that he repeatedly engaged in the unauthorized practice of law. We hold that a person who presents himself as an attorney based in an Arizona office engages in the unauthorized practice of law unless he has been admitted to practice before the Arizona Supreme Court, even if he has been admitted to practice in a tribal court within the boundaries of Arizona. The supreme court rules that compel this conclusion violate neither the First Amendment nor principles of tribal sovereignty. We further conclude that the superior court properly granted the State Bar of Arizona’s motion for summary judgment, and that the injunction is reasonable in its scope. We therefore affirm.
From WSJ: “Indian Tribes’ New Negotiating Power Costs Utilities.”
Jessica Shoemaker has posted “No Sticks in My Bundle: Rethinking the Indian Land Tenure Problem,” forthcoming in the Kansas Law Review.
Here is the abstract:
This article analyzes the modern rule that individual Indian co-owners of allotted land retain no direct rights to use and possess their own property without a lease or other prior permission from their co-owners. This special Indian no-use and no-possession rule is of a relatively recent vintage, and it is contrary to the rights of co-owners in nearly every non-Indian jurisdiction. This rule is also ahistorical and contrary to current federal policy to promote Indian use of Indian land. While other scholarship on Indian land tenure has focused on the practical challenges of coordinating among so many co-owners in Indian lands’ fractionated state and on the limits imposed by the federal trust status’s alienation restraints on these lands, this article argues that the lack of legal possession and use rights for Indian co-owners is a third and previously overlooked factor in the problem of Indian self-determination. This article ultimately concludes that the federal co-ownership rules for individual Indian lands are poorly designed and are exacerbating other land tenure and social and economic problems in Indian Country. This article ultimately proposes tribally driven solutions to create a more rational and culturally congruent property system for indigenous people.
“Oral History and Perceptions of Subjectivity,” from Jotwell.
The Hersey et al. paper, Mapping Intergenerational Memories (Part I): Proving the Contemporary Truth of the Indigenous Past, is here.
Here.
The study, titled “Written in Black & White: Exploring Confirmation Bias in Racialized Perceptions of Writing Skills,” is well worth the short read.
An excerpt:
We undertook this study with the hypothesis that unconscious confirmation bias in a supervising lawyer’s assessment of legal writing would result in a more negative rating if that writing was submitted by an African American lawyer in comparison to the same submission by a Caucasian lawyer. In order to create a study where we could control for enough variables to truly see the impact of confirmation bias, we did not study the potential variances that can be caused due to the intersection of race/ethnicity, gender, generational differences and other such salient identities. Thus, our conclusion is limited to the impact of confirmation bias in the evaluation of African American men in comparison to Caucasian men. We do not know (although we plan to study the issue in the very near future!) how this impact will splinter or strengthen when gender and/or other identities are introduced.
The data findings affirmed our hypothesis, but they also illustrated that the confirmation bias on the part of the evaluators occurred in the data collection phase of their evaluation processes – the identification of the errors – and not the final analysis phase. When expecting to find fewer errors, we find fewer errors. When expecting to find more errors, we find more errors. That is unconscious confirmation bias. Our evaluators unconsciously found more of the errors in the “African American” Thomas Meyer’s memo, but the final rating process was a conscious and unbiased analysis based on the number of errors found. When partners say that they are evaluating assignments without bias, they are probably right in believing that there is no bias in the assessment of the errors found; however, if there is bias in the finding of the errors, even a fair final analysis cannot, and will not, result in a fair result.
The Penn State Law Review has published “Native American Oral Traditional Evidence in American Courts: Reliable Evidence or Useless Myth?” by Rachel Awan.
Here is the abstract:
American history is rife with conflict between Native American cultures and the Anglo-American legal system. When Native American groups bring claims in federal court, they face a host of biases that fail to consider their distinctive cultural background. One such bias concerns the use of oral traditional evidence as testimony at trial. Because Native American groups were largely non-literate prior to European contact, Native Americans often use oral traditional evidence as testimony if the matter requires evidence extending centuries into the past. Unfortunately, the law regarding Native Americans’ use of oral traditional evidence as testimony has been particularly problematic because the existing jurisprudence has created uncertainty and inconsistency. This generates negative consequences because without the use of oral traditional evidence, Native American groups may lack the means to contend with opposing parties.
American courts have attempted to handle this genre of evidence for almost a century. Their efforts, however, have resulted in an array of cases that are nearly impossible for future claimants and litigants to follow. Specifically, cases from both the U.S. claims court and circuit courts do not detail the methods used in rejecting or admitting the oral traditional evidence. This creates harmful uncertainty for potential claimants who wish to use oral traditional evidence.
This Comment discusses American and Canadian jurisprudence, as the Supreme Court of Canada has explicitly created an evidentiary exception to accommodate aboriginal oral traditional evidence. This Comment then proposes a rule of evidence to guide American courts in making informed decisions regarding Native American oral traditional evidence.
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