The CFP is here; and the deadline is November 15.
Deadline Approaching for Wisconsin Gender Law Symposium Papers
The CFP is here; and the deadline is November 15.
Scholarship
M. Brent Leonhard on Implied Easements on Tribal Lands
M. Brent Leonhard has published “There Are No Implied Easements Over Trust Lands” in the American Indian Law Review.
The abstract:
Those who regularly practice law in Indian Country have no doubt encountered the myriad of issues surrounding rights-of-way over Indian lands. They can be pernicious. Among them are claims by non-Indian fee land owners that they have an implied easement over adjacent trust lands. Far from being arcane, this issue is one faced by tribes on a regular basis. This article shows why there are no implied easements over trust lands.
Rutgers Race & Law Review Bibliography of Indian Law Articles
Rutgers Race and the Law Review has published its annual bibliography of law review articles on race and the law. The Indian law section includes the following:
5. Native Americans/Indigenous Peoples and the Law
5.0 General
Sara Brucker, Navajo Nation v. United States Forest Service: Defining the Scope of Native American Freedom of Religious Exercise on Public Lands, 31 Environs Envtl. L. & Pol’y J. 273 (2008).
Eric C. Chaffee, Business Organizations and Tribal Self-Determination: A Critical Reexamination of the Alaska Native Claims Settlement Act, 25 Alaska L. Rev. 107 (2008).
Gavin Clarkson, Wall Street Indians: Information Asymmetry and Barriers to Tribal Capital Market Access, 12 Lewis & Clark L. Rev. 943 (2008).
Allison M. Dussias, Indigenous Languages Under Siege: The Native American Experience, 3 Intercultural Hum. Rts. L. Rev. 5 (2008).
Ezekiel J.N. Fletcher, De Facto Judicial Preemption of Tribal Labor and Employment Law, 2008 Mich. St. L. Rev. 435 (2008).
Talk at Columbia Law School re: DV in Indian Country
I’ll be presenting my paper “Addressing the Epidemic of Domestic Violence in Indian Country by Restoring Tribal Sovereignty” at Columbia Law School today, on the gracious invitation of the Columbia NALSA and Domestic Violence Project.
Marcia Yablon-Zug on Tribal Gaming Revenue Sharing and Indian Child Support
Marcia Yablon-Zug has posted “Dangerous Gamble: Child Support, Casino Dividends, and the Fate of the Indian Family” on SSRN. It is forthcoming in the William Mitchell Law Review.
The abstract:
Casino dividends have created significant wealth for many Indian tribes and have greatly improved the lives of their members. However, these benefits do not come without a price. Other scholars have noted the negative effects of gaming on tribal membership, culture, and identity but, there has been virtually no discussion regarding how casino gaming may hurt the Indian family. A recent case from the Florida Court of Appeals vividly illustrates how casino dividends can be used in ways that harm Indian families. In Cypress v. Jumper, the Florida court completely relieved an Indian father of any and all financial obligation to his children due to his children’s receipt of tribal casino dividends. In this article, I explore both the basis for, and ramifications of, this decision. I conclude that the court’s decision is not supported by previous case law permitting the consideration of children’s income but rather, is the result of the parties’ Indian ethnicity and the historic and continuing negative perceptions regarding Indian parents. I then explore the importance of child support and demonstrate that the benefits of paying child support are not simply monetary, but are also emotional and psychological. These additional benefits are especially important for Indian children who, given the centuries long assault on the Indian family, are more likely to experience family break down and the emotional and psychological effects of such breakdown than non-Indian children. Consequently, I argue that the Cypress decision creates a dangerous precedent that if followed, will allow Indian gaming to significantly harm Indian families.
Knauer on Legal Fictions and Juristic Truth
Nancy Knauer has posted “Legal Fictions and Juristic Truth” on SSRN. It is forthcoming from the St. Thomas Law Review. There is extensive discussion of Johnson v. M’Intosh, truly a case of legal fiction on numerous levels.
Here is the abstract:
The classic legal fiction is a curious artifice of legal reasoning. In a discipline primarily concerned with issues of fact and responsibility, the notion of a legal fiction should seem an anathema or, at the very least, an ill-suited means to promote a just result. However, the deployment of a patently false statement as a necessary component of a legal rule is a widely practiced and accepted mode of legal analysis. In rem forfeiture proceedings rest on the fiction that the inanimate object was bad. Attractive nuisance re-imagines the child trespasser as an invitee. A host of doctrines bearing the term “constructive” in their titles adopt an “as if” rationalization that deems something to have occurred despite the fact that it did not (e.g., constructive notice, constructive eviction, and constructive discharge). Continue reading
Special Indian Law Issue of Court Review
Here it is — Court Review Indian Law Issue
The table of contents:
The Case of Standing Bear: Establishing Personhood under the Law — Joe Starita
Sovereign Comity: Factors Recognizing Tribal Court Criminal Convictions in State and Federal Courts — Matthew L.M. Fletcher
Wisconsin’s Experience in Allocating Jurisdiction between State and Tribal Courts — Beth Ermatinger Hanan and William H. Levit, Jr.
Beyond Minimum Standards: Federal Requirements and State Interpretations of the Indian Child Welfare Act — Kathryn E. Fort
American Indian Law Research for State Courts — Nancy Carol Carter
Assumptions Regarding Indians and Judicial Humility: Thoughts from a Property-Law Lens — Ezra Rosser
From Conflict to Cooperation: State and Tribal Court Relations in the Era of Self-Determination — Aliza G. Organick and Tonya Kowalski
Charles Carvell on North Dakota Indian Water Rights
Charles Carvell, Director of the Division of Natural Resources & Indian Affairs in the North Dakota Attorney General’s Office, has published “Indian Reserved Water Rights: Impending Conflict or Coming Rapprochement Between the State of North Dakota and North Dakota Indian Tribes, in the North Dakota Law Review.
Here is an excerpt:
This article summarizes the foundation of North Dakota water law, that is, the prior appropriation doctrine. It then reviews the path by which non-Indians took homesteads on North Dakota Indian reservations, which in turn explains, first, the significant modern-day presence of non-Indian residents and non-Indian-owned land on reservations; second, the state’s effort to control some on-reservation water and its use; and third, it explains a fundamental source of tension between tribes and the state. The article recounts tribal assertions of jurisdiction over on-reservation water resources and their adamant rejection of North Dakota water law. It then reviews the 1908 Winters decision and its development during the past few decades, with an emphasis on the standard by which Indian reserved water rights are often measured, that is, practicably irrigable acres. How this standard might apply on North Dakota reservations, and if it should apply, are also addressed. The article concludes with an overview of the relationship between the tribes and the state regarding water.
Student Article on Authority of Indian Tribes to Tax Athletes and Performers
Here is an interesting piece called “The Power of Indian Tribes to Tax the Income of Professional Athletes and Entertainers Who Perform in Indian Country,” a student note in the Connecticut Law Review.
Here is the abstract:
Athletes and entertainers represent some of the highest paid individuals in the United States today. Historically, these individuals perform in various states throughout the country and pay state income taxes to each state they earn income in. With the recent rise of athletic and entertainment venues in Indian Country, more athletes and entertainers are earning income in Indian Country. For example, the Mohegan Tribe owns and operates the Mohegan Sun Arena on its reservation in Connecticut and the Arena annually hosts hundreds of professional athletic and entertainment events. Because the Mohegan Sun Arena is located in Connecticut, athletes and entertainers who perform at the Arena and receive compensation are currently subject to Connecticut’s state income tax. However, as a federally-recognized Tribe, the Mohegan Tribe possesses the power to tax, including the power to tax non-member Indians doing business on the Mohegan Reservation. Although the Mohegan Tribe does not currently levy an income tax on the athletes and entertainers who perform at the Mohegan Sun Arena, the prospect of double taxation raises the question of which sovereign is really the proper taxing entity — the State or the Tribe? This Note proposes an equitable tax framework that resolves this double taxation quandary.
New Scholarship on Same-Sex Marriage in Indian Country
Mark Strasser has posted “Tribal Marriages, Same-Sex Unions, and the Interstate Recognition Conundrum” on Berkeley Electronic Press (article here).
The abstract:
When justifying the recognition of Native American polygamous unions, courts tended to appeal the rationale that unions valid where celebrated would be valid everywhere. Yet, courts would not recognize polygamous unions that were celebrated on non-tribal lands, even if those marriages had been valid where celebrated. The focus of this essay is on why Native American polygamous unions tended to be recognized, and the implications that these recognition practices might have for the validity of same-sex marriages across state lines.
Turtle Talk 
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