ACS Advance Publishes Tribal Domestic Violence Paper

My paper on domestic violence in Indian Country will appear in the American Constitution Society publication “Advance” Spring 2009 edition.

Marren Sanders on TAS Status for Indian Tribes and the Clean Water Act

Marren Sanders has posted “Clean Water in Indian Country: The Risks (and Rewards) of Being Treated in the Same Manner as a State” on SSRN. Here is the abstract:

This article examines the “Treatment as a State” (TAS) provision of the Clean Water Act and the requirements that Native nations must satisfy in order to exercise their sovereign right to environmental regulation within the reservation. To gain TAS status and set their own water quality standards (WQS), Native nations must prove that they have a functioning tribal government with authority and capacity to regulate. Therefore, tribes considering taking the TAS step must critically evaluate their internal capacity to do so. The establishment of tribal WQS offers significant advantages to Native nations, but also very real risks as they face legal and legislative uncertainty and jurisdictional challenges. It concludes that despite a history of colonization and assimilation, tribes can and are playing a critical role in the sustainability of clean water in Indian country. Building infrastructure is not an easy task. However, for many tribes the challenge may be worth the risks.

“American Indian Education” Reviewed in American Indian Culture and Research Journal

My book “American Indian Education: Counternarratives in Racism, Struggle, and the Law” received a very nice review from Cynthia Kasee of Winston-Salem State University. The review appeared in UCLA’s American Indian Culture and Research Journal.

Kasee Review

Two Papers by Angelique EagleWoman on SSRN

The Eagle and the Condor of the Western Hemisphere: Application of International Indigenous Principles to Halt the United States Border Wall
Idaho Law Review, Vol. 45, No. 3, pp. 1-18, 2009
Angelique EagleWoman
University of Idaho – College of Law

Tribal Nation Economics: Rebuilding Commercial Prosperity in Spite of U.S. Trade Restraints – Recommendations for Economic Revitalization in Indian Country
Tulsa Law Review, Vol. 44, No. 1, pp. 383-426, 2009
Angelique EagleWoman

New Book on Great Lakes Indians’ Resistance in the Early Reservation Years

Edmund Danzinger has published “Great Lakes Indian Accommodation and Resistance during the Early Reservation Years, 1850-1900” with University of Michigan Press. Here is the website.

And the description:

During the four decades following the War of 1812, Great Lakes Indians were forced to surrender most of their ancestral homelands and begin refashioning their lives on reservations. The challenges Indians faced during this period could not have been greater. By century’s end, settlers, frontier developers, and federal bureaucrats possessed not only economic and political power but also the bulk of the region’s resources. It is little wonder that policymakers in Washington and Ottawa alike anticipated the disappearance of distinctive Indian communities within a single generation. However, these predictions have proved false as Great Lakes Indian communities, though assaulted on both sides of the international border to this day, have survived. Danziger’s lively and insightful book documents the story of these Great Lakes Indians—a study not of victimization but of how Aboriginal communities and their leaders have determined their own destinies and preserved core values, lands, and identities against all odds and despite ongoing marginalization.

Utilizing eyewitness accounts from the 1800s and an innovative, cross-national approach, Danziger explores not only how Native Americans adapted to their new circumstances—including attempts at horse and plow agriculture, the impact of reservation allotment, and the response to Christian evangelists—but also the ways in which the astute and resourceful Great Lakes chiefs, councils, and clan mothers fought to protect their homeland and preserve the identity of their people. Through their efforts, dreams of economic self-sufficiency and self-determination as well as the historic right to unimpeded border crossings—from one end of the Great Lakes basin to the other—were kept alive.

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ASLCH Call for Papers

From Law & Humanities Blog:

Call for Participation: 13th Annual ASLCH Conference

March 19-20, 2010
Brown University, Providence, Rhode Island

The Association for the Study of Law, Culture and the Humanities is an organization of scholars engaged in interdisciplinary, humanistic legal scholarship. The Association brings together a wide range of people engaged in scholarship on legal history, legal theory, jurisprudence, law and cultural studies, law and literature, law and the performing arts, and legal hermeneutics. We want to encourage dialogue across and among these fields about issues of interpretation, identity, ideals, values, authority, obligation, justice, and about law¹s place in culture.

We will be accepting proposals for panels, roundtables, papers, and volunteers for chairs and discussants from July 15th until October 15th 2009.

PLEASE NOTE: To submit proposals, please go to the online submission site https://www.regonline.com/13thAnnual

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Legal Scholarship on the Makah Treaty Right to Whaling

Emily Brand, a recent law grad, published “The Struggle to Exercise a Treaty Right: An Analysis of the Makah Tribe’s Path to Whale,” in Environs, a law journal from UC Davis. An excerpt from the intro:

At the heart of this conflict are the actors who are all trying to do what they think is right. The animal rights activists want to participate in the administrative system to ensure marine mammal protection, the Makah Tribe wants to exercise its treaty right to continue focal cultural and religious traditions, and NOAA wants to fulfill its administrative duty, including its fiduciary duty under the Neah Bay Treaty. Unfortunately, the combination of good intentions created a momentum that is no longer controllable by any one party and left the Makah with an indefinitely suspended treaty right.

The Tribe now faces a complex legal road, juggling the administrative action, the criminal case, and an imminent civil suit. The Tribe must act carefully in managing its actions and arguments so as not to foreclose any way to exercise its treaty right. The Makah have three main avenues of action: 1) follow the administrative agency MMPA waiver process defined by Anderson v. Evans; 2) re-assert issues from Anderson in criminal court; or 3) re-visit Anderson’s challenges after NOAA’s waiver determination in a civil suit. Each path involves a different strategy and risk. However, all paths lead to the Ninth Circuit and ultimately the Supreme Court, the only place where this issue could finally be put the rest.

Indigenous Law Journal — 2009 Call for Submissions

The Indigenous Law Journal at the University of Toronto is now accepting submissions from Students and Professionals for Volume IX (Fall 2010).

The submission deadline is:  September 30, 2009.

For full details on the submission process and on our student awards, please see: http://www.indigenouslawjournal.org/

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“In Defense of Property” in the Yale Law Journal

Here.

Written by Kristen A. Carpenter, Sonia K. Katyal, and Angela R. Riley [View as PDF]
118 Yale L.J. 1022 (2009).

This Article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that propertizing culture impedes the free flow of ideas, speech, and perhaps culture itself. In our view, these critiques arise largely because commentators associate “property” with a narrow model of individual ownership that reflects neither the substance of indigenous cultural property claims nor major theoretical developments in the broader field of property law. Thus, departing from the individual rights paradigm, our Article situates indigenous cultural property claims, particularly those of American Indians, in the interests of “peoples” rather than “persons,” arguing that such cultural properties are integral to indigenous group identity or peoplehood, and deserve particular legal protection. Further, we observe that whereas individual rights are overwhelmingly advanced by property law’s dominant ownership model, which consolidates control in the title-holder, indigenous peoples often seek to fulfill an ongoing duty of care toward cultural resources in the absence of title. To capture this distinction, we offer a stewardship model of property to explain and justify indigenous peoples’ cultural property claims in terms of nonowners’ fiduciary obligations toward cultural resources. We posit that re-envisioning cultural property law in terms of peoplehood and stewardship more fully illuminates both the particular nature of indigenous claims and the potential for property law itself to embrace a broader and more flexible set of interests.

Kevin Washburn on IGRA and Agency Culture

Agency Culture and Conflict: Federal Implementation of the Indian Gaming Regulatory Act by the National Indian Gaming Commission, the Bureau of Indian Affairs, and the Department of Justice
Arizona State Law Journal, Forthcoming
Kevin K. Washburn
University of New Mexico Law School — Dean and Professor of Law

Here’s the abstract:

Indian gaming provides a lens through which to consider the implications of divided federal executive power. The Indian Gaming Regulatory Act is implemented by at least three federal agencies, each of which has somewhat different interests. Moreover, none of these agencies is monolithic and each must reconcile competing interests within its own domain. In examining the culture of three federal agencies, the author seeks to shed light on divided executive branch governance. The article briefly addresses three different issues: the ‘independence’ of an independent agency, the NIGC, which lacks litigating authority; the problem with shared subject matter jurisdiction by DOJ and NIGC over game classification, and shared decision making by NIGC and DOI on Indian lands questions. The author concludes that divided federal power creates substantial coordination problems at the federal level. These problems often prevent the federal government from speaking with one clear voice that would generate deference to executive power, and sometimes prevent the exercise of executive action. If governmental power in Indian affairs is a zero sum game, one clear consequence of divided federal power is increased tribal sovereignty.