Other briefs TK
Lower court materials here.
HR 3744 is here: CBO publication here and Bill here. It could replace the current procedures for federal recognition (for reference, here), but does not allow previously denied “Indian groups” from re-petitioning for federal recognition under the new act (if this bill passes), nor does it have an avenue to challenge a denial/negative finding.
Amanda M. Marincic has published “The National Historic Preservation Act: An Inadequate Attempt to Protect the Cultural and Religious Sites of Native Nations” in the Iowa Law Review.
Beginning in 2016, the Standing Rock Sioux Tribe engaged in a highly-publicized, year-long legal battle with Energy Transfer Partners regarding the construction of the Dakota Access Pipeline (“DAPL”). The Tribe initially argued that the DAPL’s construction would destroy ancient burial sites and potentially poison their only source of drinking water, the Missouri River. The Tribe also argued that the agency involved in the project, the Army Corps of Engineers, did not fulfill the obligations required by the NHPA. For a while, the fate of the DAPL was uncertain, with permits for construction being denied and then granted. After the Army Corps of Engineers granted the permit pursuant to President Trump’s memorandum, construction on the DAPL was completed. After several failed attempts by the Standing Rock Sioux to halt operation of the DAPL, a federal district judge ruled in June 2017 that the environmental impact studies done on the DAPL were inadequate. While this ruling is a small victory for the Standing Rock Sioux Tribe, the NHPA was useless in protecting its cultural sites from significant damage.
Kirsten Matoy Carlson has posted “Lobbying Against the Odds,” forthcoming in the Harvard Journal on Legislation. Here is the abstract:
Conventional narratives maintain that groups that lack political power litigate because they cannot attain their goals politically. Yet lobbying by American Indians has increased over 600 percent since the late 1970s. And they are not alone. Other politically marginalized groups have also intensified their lobbying efforts over the past five decades. This raises an important question that scholars have yet to adequately answer: Why do some groups use legislative strategies to achieve their goals? This Article challenges the prevailing wisdom and demonstrates that groups sometimes lobby even when the odds are stacked against them. It considers the existing sociolegal framework for understanding why groups litigate, and suggests modifications based on insights from interest group studies, to provide a more complete explanation of when and why groups engage in various advocacy strategies. This modified sociolegal approach produces significant insights into how legal and political actors influence and are influenced by the institutions they turn to, but also enables us to see similar—and divergent—patterns across contexts. The Article presents original quantitative data to document the dramatic rise in American Indian lobbying from 1978 to 2012. Then it uses the modified sociolegal approach to explain how the relationships among courts, the political process, and groups facilitated American Indian legislative advocacy. It concludes by discussing the implications of the approach for studies of legal mobilization, interest groups, and federal Indian law.
Historic Vote on I-940, De-Escalation Initiative
In an historic vote the state legislature has passed I-940 and ESHB 3003 to address police use of deadly force. To move forward, De-Escalate Washington leadership and law enforcement sat down to hear each other and listen. The process brought the parties together and paved the way for collaboration and an agreement on I-940.
Together I-940 and the agreed upon policy in ESHB 3003 strengthen and clarify the measure so that implementation goes more smoothly and the legal standards for the “good faith” standard are more clear.
An excerpt, and a little horn tooting:
The most telling argument for the government is the recitation (in an amicus brief filed by a group of law professors) of the dozens of statutes Congress has adopted through the centuries resolving Indian land disputes and dealing high-handedly with Indian lands. It is notable that Bank Markazi emphasized Congress’ supreme authority over foreign affairs in its rejection of the Klein claim in that case. Congress’ plenary authority to regulate and protect Indian tribes leaves room for a similar resolution of this case without explicitly rejecting the Klein rule. Bank Markazi of course said nothing about Congress’s power over Indian affairs, so that result wouldn’t really follow from Bank Markazi. It would, though, afford the justices a way to decide the case narrowly, which seems to have been their goal in these cases. The key thing to watch for in the argument will be any sense that any of the members of the Bank Markazi majority show a willingness to treat this case differently than they did that one.
You can read that amicus brief here, along with the rest of the briefs