William Baude, a clerk for Judge McConnell of the CA10, has just posted “The Judgment Power” on SSRN, forthcoming in the Georgetown Law Journal.
Here’s the abstract:
Scholarship
Article on the Treaty of Waitangi
Mark J. Bennett & Nicole Roughan have posted “Rebus Sic Stantibus and the Treaty of Waitangi” on SSRN. This is a very interesting paper, a response to the argument put forth by renowned legal thinker Jeremy Waldron that the doctrine of rebus sic stantibus could be applied to the Treaty of Waitangi to effectively abrogate it. In short, this argument goes, the passage of time and radically changed political realities could serve to render the Treaty unenforceable.
This, I think, is a similar argument to what the Vermont Supreme Court made in State v. Elliott and what the U.S. Supreme Court did in Sherrill v. Oneida Indian Nation — where the passage of time and changed political circumstances appear to render Indian treaty rights nugatory. In short, it’s troubling.
From the abstract:
Carla Pratt on Tribal Miscegenation Laws
Carla Pratt (Penn State) has published “Loving Indian Style: Maintaining Racial Caste and Tribal Sovereignty Through Sexual Assimilation” in the Wisconsin Law Review as part of the Review’s symposium on Loving v. Virginia.
Here’s the intro:
Indian Law Profs newsletter — November 2007
Here’s the newest Indian Law Profs Newsletter from Judy Royster:
Case Note on Trail Smelter (Pakootas v. Teck Camino)
The Harvard Environmental Law Review published a case note on the Trail Smelter case, “Pakootas v. Teck Cominco Metals, Ltd.“ The Supreme Court will decide shortly whether or not the hear the case, though the Solicitor General has argued in favor of a denial of cert. The case involves water pollution of tribal waters at Colville by a Canadian smelter.
King on Tribal Contracting of National Park Service Functions
Mary Ann King published “Co-Management or Contracting? Agreements Between Native American Tribes and the U.S. National Park Service Pursuant to the 1994 Tribal Self-Governance Act” in the Harvard Environmental Law Review.
From the introduction:
Case on Federal Taxation of Tribal Trust Funds
Here, the Citizen Potawatomi Nation paid its chairman using interest from tax-exempt trust funds, expecting the chairman to then be exempt from federal income tax. Not so, according to the IRS — and the Western District of Oklahoma agreed.
Here are the materials:
Purdy on Johnson v. M’Intosh
Jedediah Purdy has published “Property and Empire: The Law of Imperialism in Johnson v. M’Intosh” in the George Washington Law Review.
From the abstract:
Lillian Aponte Miranda on Indigenous Land Rights under International Law
Hon. J. Matthew Martin (Eastern Band Cherokee) on FTCA “Law of the Place”
Judge Martin of the Eastern Band Cherokee tribal court has published “Federal Malpractice in Indian Country and the ‘Law of the Place’: A Re-examination of Williams v. United States Under Existing Law of the Eastern Band of Cherokee Indians” in the Campbell Law Review.
Turtle Talk 
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