Kekek Jason Stark, Autumn L. Bernhardt, Monte Mills, and Jason A. Robison have published “Re-Indigenizing Yellowstone” in the Wyoming Law Review. HIGHLY RECOMMENDED.
“Re-Indigenizing Yellowstone” in the Wyoming Law Review
Scholarship
Alex Skibine Publishes “Textualism and the Indian Canons of Statutory Construction” . . .
. . . in the University of Michigan Journal of Law Reform (Go Blue). PDF
Here is the abstract:
When interpreting statutes enacted for the benefit or regulation of Indians or construing treaties signed with Indian nations, courts are supposed to apply any of five specific canons of construction relating to Indian Affairs. Through examining the modern line of Supreme Court cases involving statutory or treaty interpretation relating to Indian nations, this Article demonstrates that the Court has generally been faithful in applying canons relating to treaty interpretation or abrogation. The Court has also respected the canon requiring unequivocal expression of congressional intent before finding an abrogation of tribal sovereign immunity. However, there are two other canons that the Court almost never applies. One, the tribal sovereignty canon, requires clear intent to interfere with tribal sovereign rights; the other, the Indian ambiguity canon, requires statutes to be construed liberally with ambiguities resolved to the benefit of Indians. After reviewing the possible reasons why textualist jurists might be opposed to the use of substantive canons, this Article makes two arguments to remedy any reluctance to using the tribal sovereignty and Indian ambiguity canons. First, these canons have constitutional roots, and as such, even textualists on the Court should not be reluctant to use them. Second, the more established canon concerning abrogation of tribal sovereign immunity should also extend to statutes interfering with tribal sovereign rights. There are no normative reasons to treat abrogation of sovereign immunity differently than other statutory interference with tribal sovereignty.
MSU Press Publishes New Work on Tribal Administration
Rebecca M. Webster and Joseph Bauerkemper have published their edited collection “Tribal Administration Handbook: A Guide for Native Nations in the United States.”
Blurb:
A direct response to the needs and ambitions articulated by tribal administrators and leaders, this handbook seeks to serve practitioners, students, researchers, and community members alike. It grew out of an ongoing collaboration among scholars and practitioners from tribal nations, universities, tribal colleges, and nonprofit organizations who are developing practical and teaching resources in the field of tribal administration and governance. Designed as a readable, accessible volume, it focuses on three key areas: tribal management, funding and delivering core services, and sovereign tribes engaging settler governments. While the chapters complement one another by presenting a coherent and unified constellation of voices that illuminates a shared terrain of practical Indigenous governance, each chapter ultimately stands alone to accommodate a variety of needs and interests with specific best practices, quick-reference executive summaries, and practitioner notes to aid lesson applications. This humble collection of remarkable voices initiates a conversation about tribal administration that will hopefully continue to grow in service to Native nations.
American Indian Law Journal, Volume 10, Issue 2
Here:
Current Issue: Volume 10, Issue 2 (2022)
Articles
Crossing the Dark and Fearful River: Monsanto, PCBs, and Emerging Tort Theories
Keith Dornan and Jamie Hearn
Case Law on American Indians
Thomas P. Schlosser
The Rule Against Hearsay, Indigenous Claims and Story-Telling as Testimony in Canadian Courts
Zia Akhtar
A Watershed Moment: The Health and Economic Impact of Water Sustainability in the Navajo Nation Post Pandemic
Onnaedo Nwankwo
Hinton and Giles on Native Reflections on Dawnland
Michael-Corey F. Hinton and Erick J. Giles have published “Eli-Tpitahatomek Tpaskuwakonol Waponahkik (How We, Native People, Reflect on the Law in the Dawnland)” in the Maine Law Review.
The abstract:
Multiple nations within the Wabanaki Confederacy, including the Maliseet Nation, Mi’kmaq Nation, Passamaquoddy Tribe, and Penobscot Nation, were signatories to the July 19, 1776 Treaty of Watertown, which was the first ever treaty entered into by the United States of America following the Declaration of Independence. Following the Treaty of Watertown, Wabanaki warriors served directly under General George Washington and made critical contributions in support of the Americans’ Revolutionary War. Such contributions were made based on the Americans’ promise that the Wabanaki Nations’ lands, natural resources, and traditional ways of life would be forever protected by the fledgling United States. Unfortunately for the Wabanaki Nations, their Revolutionary War-era promises were largely disregarded as the Commonwealth of Massachusetts and then the State of Maine systematically oppressed their indigenous inhabitants by ignoring an emerging body of federal law, based on the Doctrine of Discovery, which was intended to protect those very indigenous people. This Article delves into this complex history by exploring the Doctrine of Discovery, historical dealings between the Wabanaki and the Americans, and the events and court cases leading up to the enactment of the Maine Indian Claims Settlement Act (MICSA), which resolved Wabanaki land claims against the State of Maine for the illegal taking of tribal lands. This Article then analyzes the legislative history and text of the MICSA and juxtaposes this record with federal common law interpreting the rights of federally recognized Tribal nations. Finally, this Article argues that federal common law interpreting the rights of Tribal nations should be relied upon when interpreting the scope of specific Wabanaki rights that were never ceded or relinquished in treaties or in the MICSA.
Roger Williams Law Review Symposium: An Uncomfortable Truth, Indigenous Communities and Law in New England
Here:
Mohegan Women, the Mohegan Church, and the Lasting of the Mohegan Nation
Bethany R. Berger and Chloe Scherpa
An Uncomfortable Truth: Law as a Weapon of Oppression of the Indigenous Peoples of Southern New England
James D. Diamond
Uncomfortable Truths About Sovereignty and Wealth
Matthew L.M. Fletcher
Returning Home and Restoring Trust: A Legal Framework for Federally Non- Recognized Tribal Nations to Acquire Ancestral Lands in Fee Simple
Taino J. Palermo
The Continued Impact of Carcieri on the Restoration of Tribal Homelands: In New England and Beyond
Bethany Sullivan and Jennifer Turner
Colonial Legislation Affecting Indigenous Peoples of Southern New England as Organized by State
James D. Diamond
Masthead
Notes and Comments
Resisting Indigenous Erasure in Rhode Island: The Need for Compulsory Native American History in Rhode Island Schools
Whitney Saunders
High Country News on SCOTUS and Indian Law Post-Castro-Huerta Featuring Leeds, Reese, Fletcher, Berger
Here is “The Supreme Court’s attack on tribal sovereignty, explained” by Nick Martin.
Student Scholarship on McGirt and Aboriginal Title
Clare Blumenthal published “‘We Hold the Government to Its Word’: How McGirt v. Oklahoma Revives Aboriginal Title” in the Yale Law Journal.
Here is the abstract:
This Note analyzes for the first time how McGirt v. Oklahoma could revive aboriginal-title land claims against the United States and create an opening for Land Back litigation. It argues that McGirt directs lower courts to enforce aboriginal title’s congressional-intent requirement strictly and renews the relevance of an overlooked case from 2015, Pueblo of Jemez v. United States. In Pueblo of Jemez, the Tenth Circuit unknowingly demonstrated how insisting on clearer proof of congressional intent to extinguish title would implement McGirt’s holding and remove the jurisdictional bars—sovereign immunity and preclusion—that have prevented aboriginal-title litigation.
New Scholarship on the Persistence of Tribal Sovereignty
Seth Davis, Eric Biber & Elena Kempf have published “Persistent Sovereignties” in the University of Pennsylvania Law Review. Here is the abstract:
From the first days of the United States, the story of sovereignty has not been one of a simple division between the federal government and the states of the Union. Then, as today, American Indian tribes persisted as self-governing peoples with ongoing and important political relationships with the United States. And then, as today, there was debate about the proper legal characterization of those relationships.
The United States Supreme Court confronted that debate in McGirt v. Oklahoma when, in an opinion by Justice Neil Gorsuch, it held that the reservation of the Muscogee (Creek) Nation “persists today.” The Court’s recognition of the persistence of Tribal sovereignty triggered a flurry of critical commentary, including from federal lawmakers who share Justice Gorsuch’s commitment to originalism. But the early history of federal Indian law supports the persistence of tribal sovereignty.
Tulsa Law Review Indian Law Symposium Issue
Here are the Indian law articles:
Article
Restoring Oklahoma: Justice and the Rule of Law Post-McGirt
Sara E. Hill
Digital Economic Zones: A Program for Comprehensive Tribal Economic Sovereignty
W. Gregory Guedel and Philip H. Viles Jr.
Lessons Learned, Lessons Forgotten: A Tribal Practitioner’s Reading of McGirt and Thoughts on the Road Ahead
Stephen H. Greetham
Turtle Talk 
You must be logged in to post a comment.