Author: Matthew L.M. Fletcher – Page 336

For the past 180 years, the inherent power of indigenous tribes to govern themselves has been a central tenet of federal Indian law. Despite the U.S. Supreme Court’s repeated confirmation of Native sovereignty since the early 1830s, it has, in the past half-century, incrementally curtailed the power of tribes to govern non-Indians on Indian reservations. The result, Dewi Ioan Ball argues, has been a “silent revolution,” mounted by particular justices so gradually and quietly that the significance of the Court’s rulings has largely evaded public scrutiny.

Ball begins his examination of the erosion of tribal sovereignty by reviewing the so-called Marshall trilogy, the three cases that established two fundamental principles: tribal sovereignty and the power of Congress to protect Indian tribes from the encroachment of state law. Neither the Supreme Court nor Congress has remained faithful to these principles, Ball shows. Beginning with Williams v. Lee, a 1959 case that highlighted the tenuous position of Native legal authority over reservation lands and their residents, Ball analyzes multiple key cases, demonstrating how the Supreme Court’s decisions weakened the criminal, civil, and taxation authority of tribal nations. During an era when many tribes were strengthening their economies and preserving their cultural identities, the high court was undermining sovereignty. In Atkinson Trading Co. v. Shirley (2001) and Nevada v. Hicks (2001), for example, the Court all but obliterated tribal authority over non-Indians on Native land.

By drawing on the private papers of Chief Justice Earl Warren and Justices Harry A. Blackmun, William J. Brennan, Thurgood Marshall, William O. Douglas, Lewis F. Powell Jr., and Hugo L. Black, Ball offers crucial insight into federal Indian law from the perspective of the justices themselves. The Erosion of Tribal Power shines much-needed light on crucial changes to federal Indian law between 1959 and 2001 and discusses how tribes have dealt with the political and economic consequences of the Court’s decisions.

National Indian Law Library Bulletin (12/12/2016)

December 17, 2016Matthew L.M. Fletcher

Here:

The National Indian Law Library added new content to the Indian Law Bulletins on 12/12/16.

U.S. Federal Trial Courts Bulletin
http://www.narf.org/nill/bulletins/dct/2016dct.html
Native American Arts, Inc. v. Peter Stone Co., U.S.A., Inc. (Indian Arts and Crafts Act)

News Bulletin
http://www.narf.org/nill/bulletins/news/currentnews.html
In the Environment & Energy section, we feature a story on the Obama executive order creating the Northern Bering Sea Climate Resilience Area.

U.S. Regulatory Bulletin
http://www.narf.org/nill/bulletins/regulatory/2016fr.html
We feature a notice of the Department of Health & Human Services, Indian Health Services, of grants available for the Methamphetamine and Suicide Prevention Initiative (Short Title: MSPI)–Generation Indigenous (GEN-I) Initiative Support.

Law Review & Bar Journal Bulletin
http://www.narf.org/nill/bulletins/lawreviews/2016lr.html
Here are the articles featured this week:
Grand Canyon Trust v. Williams: Tribal land protection and the battle for Red Butte.
Blackhawk down or Blackhorse down? The Lanham Act’s prohibition of trademarks that “may disparage” & the First Amendment.

U.S. Legislation Bulletin
http://www.narf.org/nill/bulletins/legislation/114_uslegislation.html
These bills were added:
S.612: Water Infrastructure Improvements for the Nation (WIIN) Act.
S.2012: North American Energy Security and Infrastructure Act of 2016.

National Indian Law Library Bulletin (12/5/2016)

December 17, 2016Matthew L.M. Fletcher

Here:

The National Indian Law Library added new content to the Indian Law Bulletins on 12/5/16.

U.S. Supreme Court Bulletin
http://www.narf.org/nill/bulletins/sct/2016-2017update.html
Petition was filed in Nisenan Tribe of Nevada City Rancheria v. Jewell (Statute of Limitations; nunc pro tunc ruling) on 11/3/16.
In addition, see the Tribal Supreme Court Update Memoranda of December 5, 2016.

U.S. Federal Trial Courts Bulletin
http://www.narf.org/nill/bulletins/dct/2016dct.html
United States v. Jim (Federal Taxation – Individual Tribal Gaming Payments)

State Courts Bulletin
http://www.narf.org/nill/bulletins/state/2016state.html
In re Adoption of Micah H. (Indian Child Welfare Act – Active Efforts)
In re O.C. (Indian Child Welfare Act – Notice)
Guardianship of C.H.S. (Indian Child Welfare Act – Transfer to Tribal Court)
In re Charlotte V. (Indian Child Welfare Act – Notice)

News Bulletin
http://www.narf.org/nill/bulletins/news/currentnews.html
In the Environment & Energy section, we feature an article about Trump advisors’ aim to privatize oil-rich Indian reservations.

U.S. Regulatory Bulletin
http://www.narf.org/nill/bulletins/regulatory/2016fr.html
The Department of Agriculture has announced a public meeting of the Council for Native American Farming and Ranching

Law Review & Bar Journal Bulletin
http://www.narf.org/nill/bulletins/lawreviews/2016lr.html
Here are the articles featured this week:
Operationalizing FPIC.
Protecting the free-ranged kid: Recalibrating parents’ rights and the best interests of the child.
Redskins: The property right to racism.

U.S. Legislation Bulletin
http://www.narf.org/nill/bulletins/legislation/114_uslegislation.html
These bills and resolution were added:
H.R.6363: To amend the Internal Revenue Code of 1986 to extend for two years the Indian employment credit.
H.R.6362: To amend the Internal Revenue Code of 1986 to extend for one year the Indian employment credit.
S.3482: Navajo Utah Water Rights Settlement Act of 2016.
S.Res.619: A resolution recognizing National Native American Heritage Month and celebrating the heritages and cultures of Native Americans and the contributions of Native Americans to the United States.

New Scholarship from Anaya, Miller, and Berger

December 16, 2016December 14, 2016Matthew L.M. Fletcher

On SSRN, here:

Mitigating State Sovereignty: The Duty to Consult with Indigenous Peoples
67 University of Toronto Law Journal ___ (Forthcoming), Arizona Legal Studies Discussion Paper No. 16-42
S. James Anaya and Sergio Puig
University of Colorado Law School and University of Arizona Law School
Date Posted: November 30, 2016

Tribal, Federal, and State Laws Impacting the Eastern Shawnee Tribe, 1812 to 1945
The Eastern Shawnee Tribe of Oklahoma: Resilience through Adversity (University of Oklahoma Press 2017)
Robert J. Miller
Arizona State University (ASU) – Sandra Day O’Connor College of Law
Date Posted: November 29, 2016

Resurrecting the Third Sovereign in the United States Supreme Court
University of Illinois Law Review, 2017 Forthcoming
Bethany Berger
University of Connecticut School of Law
Date Posted: November 27, 2016

Bloomberg Commentary on Cherokee Marriage Equality

December 15, 2016Matthew L.M. Fletcher

Noah Feldman has published “Cherokees’ Gay-Marriage Law is Traditional.”

North Dakota SCT Issues Ruling on Tribal Jurisdiction

December 14, 2016December 14, 2016Matthew L.M. Fletcher

Here is the opinion in Fredericks v. Fredericks. An excerpt:

Lyndon Fredericks appeals, and Bole Resources, LLC, and others (“Bole defendants”) cross-appeal from a judgment declaring the district court had subject-matter jurisdiction over the action, reforming a quit claim mineral deed, quieting title in the mineral interests in Paul Fredericks, and ordering Lyndon Fredericks to pay the Bole defendants damages plus interest and their attorney fees. Because we conclude the district court correctly ruled it had subject-matter jurisdiction, its findings of fact are not clearly erroneous, and it did not abuse its discretion, we affirm.

Briefs here:

Appellant Brief

Appellee Brief

Reply Brief