Standing Rock Sioux Tribe chief judge William Zuger has published his paper, “‘Members Only’: A Critique of Montana v. United States“, in the North Dakota Law Review.
Scholarship
Paul Spruhan on Non-Indian Consent to Tribal Criminal Jurisdiction
Paul Spruhan has posted his draft paper, ‘Indians, in a Jurisdictional Sense’: The Continuing Viability of Consent as a Theory of Tribal Criminal Jurisdiction Over Non-Indians, on SSRN. We have accepted this paper for our new collection of essays to be edited by Fletcher, Fort, and Singel arising out of last fall’s MSU Indigenous Law and Policy Center annual conference, Beyond the Tribal Law and Order Act.
Here is Paul’s abstract:
The paper, written as a chapter for a proposed collaborative book on the Tribal Law and Order Act, discusses the theory of consent as a means of asserting tribal criminal jurisdiction over non-Indians. It discusses the legal history of naturalization and adoption of non-Indians as citizens of tribal nations as one form of consent. It then discusses the historical and contemporary influence of the Department of the Interior on tribal membership provisions adopted under the Indian Reorganization Act and other laws, and the shift from naturalization to rules restricting membership to citizens with tribal or Indian blood. It further discusses different modern theories of consent, adopted by the Navajo Nation and other tribes, based both on tribal traditional law and the Indian Civil Rights Act, and their relative chances of surviving federal scrutiny. It concludes with the proposal that non-Indians themselves consent to tribal criminal jurisdiction as a form of resistance to the ongoing reduction of tribal authority by the federal courts.
44th Annual Dakota Conference Happening April 27 & 28
FBA’s Federal Lawyer Publishes Annual Indian Law Issue
Here.
The Potential Impact of the Growing Mobile Society on Tribal Identity (Venus McGhee Prince)
When most Americans think of tribes in this country, they don’t think of modern Indians who may live next door and may look and act much like them, at least from a first glance. Yet the growing technological and physical mobility of modern society may be producing these fundamental changes in tribal identity. This article explores the challenges that face tribes as their identities are reshaped in the modern world.
In Memoriam: David Getches: A Tribute to a Leader and a Scholar (Matthew L.M. Fletcher and Kristen A. Carpenter)Indian country lost a great champion when David H. Getches walked on to the next world on July 5, 2011.
Garden of Truth (Sarah Deer)Sex trafficking is often thought of as a crime that originates overseas. This article explores the ugly reality of commercial sexual exploitation in the lives of American Indian women and girls, right here in the United States.
California v. Cabazon Band: A Quarter-Century of Complex, Litigious Self-Determination (Matthew L.M. Fletcher)The U.S. Supreme Court’s decision inCalifornia v. Cabazon Band of Mission Indiansmay be the most momentous decision in federal Indian law in the last 50 years.
Also, FBA Indian Law Section President Elizabeth Ann Kronk’s “At Sidebar” Message, “United States v. Jicarilla Apache Nation: Its Importance and Potential Future Ramifications” is here. Apparently, she doesn’t get a photo.
Fletcher on Cabazon Band in the Federal Lawyer
I’ve posted my short paper, “California v. Cabazon Band: A Quarter-Century of Complex, Litigious Self-Determination,” in this month’s Federal Lawyer on SSRN.
Here is the abstract:
The Supreme Court’s decision in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), may be the most momentous decision in federal Indian law in the last 50 years. The decision provided a federal common law basis for Indian tribes to engage in high stakes bingo and other gaming activities without state regulation, even in so-called Public Law 280 states like California that have criminal jurisdiction inside of Indian country. Cabazon Band provoked Congress to finally codify a regulatory scheme for Indian gaming, including an enactment that authorized under specific conditions Vegas-style casino gaming, in the Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2701 et seq. Indian gaming, as a direct result of Cabazon Band, now has a market greater than $26 billion a year nationally.
Paul Spruhan on the Meaning of Due Process at Navajo
Paul Spruhan (Navajo DOJ) has posted his chapter, “The Meaning of Due Process in the Navajo Nation.” This is a chapter from “The Indian Civil Rights Act at Forty.”
Here is the abstract:
The article is a contribution to the Indian Civil Rights Act at Forty, and describes the Navajo Nation’s approach to the concept of due process under the Indian Civil Rights Act and the Navajo Bill of Rights. It traces the evolution of the Navajo Supreme Court’s views on due process from direct application of federal definitions to the development of a unique Navajo doctrine informed by federal constitutional doctrine, but ultimately reflecting Navajo values of fairness. Based on the discussion of the development of Navajo due process, the article suggests the Navajo Nation’s approach in synthesizing federal doctrine with tribal values can be a model for other tribes grappling with developing modern court systems that emphasize jurisprudential sovereignty through the development and application of unique tribal law.
Kathryn Fort on Tribal-State Cooperation and the Indian Child Welfare Act
Our own Kathryn Fort has posted her new paper, “Waves of Education: Tribal-State Cooperation and the Indian Child Welfare Act,” on SSRN. It is forthcoming in the Tulsa Law Review.
Here is the abstract:
This article focuses on the relationship and agreements between tribal and state judicial systems in Michigan. In tracing that work, the article demonstrates the cyclical nature of tribal-state court relations, and the way the welfare of Indian children binds together tribal and state judicial systems, regardless of either side’s participation. Federal intervention in this area under the auspices of the Indian Child Welfare Act (“ICWA”) virtually forces tribes and states to work together. How the personnel in the tribal and state systems interact has a huge impact on the children of the tribes in Michigan.
Twice in the past twenty years representatives of the tribal and state judiciaries in Michigan have come together to negotiate agreements, create rules, and draft legislation. Once the work is done, however, how do the courts handle these kind of agreements? Part of the problem with state ICWA laws elsewhere is the courts’ unwillingness to affirm a state law that differs from ICWA. Tribes and states willing to do the work to create a state ICWA law that is tailored to state laws, while providing more than the minimum standards created by the federal ICWA, have at times been greeted with hostility in the courts. Regardless, the relationships that develop through the process of drafting these laws and agreements benefit both tribal and state systems.
Seattle Law School’s American Indian Law Journal Trial Issue
Very exciting!
Here it is (with articles by Anthony Broadman, Mark Jarboe, Brent Leonhard, and others):
New Scholarship on Indian Gaming and Native Identity
Matthew King has posted his paper, “Indian Gaming and Tribal Identity,” on SSRN. It was published in the Chicano-Latino Law Review.
Here is the abstract:
The article presents the significant developments in the law governing Indian gaming with a view to assessing gaming’s politicization of Native identity. By addressing the stereotypes and caricatures of Native Americans and tribes that animate legal and political change in the field, the article seeks to demonstrate the essentialism of Indian gaming and the consequent effect of gaming politics on Native identity. Key among the views expressed are that Indian gaming produces real, non-theoretical gains for tribes, which in turn creates new subject positions for Native Americans, and that gaming introduces substantial non-Native influence into the process of tribal government, thereby enacting a social and political cost to tribes. The article covers in separate sections the Indian Gaming Regulatory Act of 1988, Tribal-State compacting in California, and critical responses to Native identity under an identity politics rubric.
New Book Announcement: The Indian Civil Rights Act at Forty
The Indian Civil Rights Act at Forty (NEW!)
Edited by Kristen A. Carpenter, Matthew L.M. Fletcher, and Angela R. Riley
Congress passed the Indian Civil Rights Act of 1968 (ICRA) to address civil rights in Indian country. ICRA extended select, tailored provisions of the Bill of Rights-including equal protection, due process, free speech and religious exercise, criminal procedure, and property rights-to tribal governments. But, with the exception of the writ of habeas corpus, Congress did not establish a federal enforcement mechanism for violations of the Act, nor did it abrogate tribal sovereign immunity. Thus, ICRA has been interpreted and enforced almost exclusively by Indian tribes and their courts. This collection of essays, gathered on the fortieth anniversary of ICRA, provides for the first time a summary and critical analysis of how Indian tribes interpret and apply these important civil rights provisions in our contemporary world. The authors have found that, while informed by ICRA and the dominant society’s conception of individual rights, Indian nations are ultimately adapting and interpreting ICRA in ways consistent with their own tribal traditions and beliefs. In some respects, ICRA parallels the broader experiences of tribes over the past forty years-a period of growth, revitalization, and self-determination for many Indian nations.
358 pp.
$40 paper
10-digit ISBN 0-935626-67-0
13-digit ISBN: 978-0-935626-67-4
Table of Contents (PDF)
The Indian Civil Rights Act at Forty Book Blurbs (PDF)
Individual’s Price: $40.00
Stock: In Print
UPDATE: Two chapters of this book are available on SSRN as a free preview!!!!
Individual Religious Freedoms in American Indian Tribal Constitutional Law
The Indian Civil Rights Act at Forty (American Indian Studies Center Publications), 2012
Kristen A. Carpenter
University of Colorado Law School
Date Posted: March 04, 2012
Last Revised: March 06, 2012
Resisting Congress: Free Speech and Tribal Law
THE INDIAN CIVIL RIGHTS ACT AT FORTY, Kristen A. Carpenter, Matthew L.M. Fletcher, Angela R. Riley eds., UCLA American Indian Studies Center, 2012, MSU Legal Studies Research Paper No. 10-05
Matthew L. M. Fletcher
Michigan State University College of Law
Date Posted: March 14, 2012
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