Jonodev Chaudhuri has published “Reflection on McGirt v. Oklahoma” in the Harvard Law Review Forum.
Scholarship
Harvard Law Review Case Comment on McGirt v. Oklahoma
Here.
Michael Doran on the Equal Protection Challenge to Indian Law
Michael Doran has posted “The Equal-Protection Challenge to Federal Indian Law,” forthcoming in the University of Pennsylvania Journal of Law & Public Affairs, on SSRN.
Here is the abstract:
This article addresses a significant challenge to federal Indian law currently emerging in the federal courts. In 2013, the Supreme Court suggested that the Indian Child Welfare Act may be unconstitutional, and litigation on that question is now pending in the Fifth Circuit. The theory underlying the attack is that the statute distinguishes between Indians and non-Indians and thus uses the suspect classification of race, triggering strict scrutiny under the equal-protection component of the Due Process Clause. If the challenge to the Indian Child Welfare Act succeeds, the entirety of federal Indian law, which makes hundreds or even thousands of distinctions based on Indian descent, may be unconstitutional. This article defends the constitutionality of federal Indian law with a novel argument grounded in existing Supreme Court case law. Specifically, this article shows that the congressional plenary power over Indians and Indian tribes, which the Supreme Court has recognized for nearly a century and a half and which inevitably requires Congress to make classifications involving Indians and Indian tribes, compels the application of a rational-basis standard of review to federal Indian law.
New Indian Law Scholarship Posted on SSRN
Here:
Scaling Commercial Law in Indian Country
Texas A&M Law Review, Forthcoming
Number of pages: 38 Posted: 21 Sep 2020
Working Paper Series
Southern University Law Center
McGirt v. Oklahoma and the Past, Present, and Future of Reservation Boundaries
University of Pennsylvania Law Review Online, 2020
Number of pages: 45 Posted: 22 Sep 2020 Last Revised: 06 Oct 2020
Accepted Paper Series
University of Connecticut School of Law
Disparate Defense in Tribal Courts: The Unequal Right to Counsel as a Barrier to Expansion of Tribal Court Criminal Jurisdiction
Forthcoming in 106 Cornell Law Review (November 2020)
Number of pages: 29 Posted: 25 Sep 2020
Accepted Paper Series
Independent
The Canadian Indian Free Passage Right: An Anomaly in U.S. Immigration Law
The Federal Lawyer (May/June 2020)
Number of pages: 2 Posted: 02 Oct 2020
Accepted Paper Series
Navajo Nation Department of Justice
Tribes, Nations, States: Our Three Commerce Powers
Number of pages: 48 Posted: 12 Oct 2020
Working Paper Series
University of Mississippi – School of Law
Indiana’s Indian Laws: Indigenous Erasure and Racism in the Land of the Indians
Number of pages: 28 Posted: 21 Oct 2020
Working Paper Series
University of Tulsa College of Law
Alex Skibine on the Tribal Right to Exclude Nonmembers
Alexander Tallchief Skibine has posted “The Tribal Right to Exclude Non-Tribal Members from Indian-Owned Lands,” forthcoming from the American Indian Law Review, on SSRN.
Here is the abstract:
In 1981, the Supreme Court issued its decision in Montana v. United States, severely restricting the ability of Indian Tribes to assume civil regulatory and adjudicatory jurisdiction over non-tribal members for activities taking place on non-Indian lands within Indian reservations. The Court in Montana stated that “it could readily agree” with the Court of Appeals’ holding that the tribe could regulate the conduct of non-member on tribal lands. Yet, twenty years later, the Court issued its opinion in Nevada v. Hicks holding that in certain circumstances, the jurisdiction of Indian tribes could also be limited even if the activities of the non-members took place on Indian-owned lands.
It has been almost twenty years since Hicks and because of the cryptic and fractured nature of that decision, the federal circuits are divided and still trying to figure out under what circumstances tribal civil jurisdiction over non-members should be restricted when these activities take place on Indian-owned lands.
In this Article, I argue that among all the possible interpretations of Hicks, the one adopted by the Ninth Circuit makes the most sense. Under that interpretation, the so-called Montana framework used to divest tribes of jurisdiction is not applicable to cases where a tribe has retained the right to exclude. I argue that Hicks can be reasonably conceptualized as endorsing the 9th Circuit methodology. However, I also argue that Hicks should have been decided as a state jurisdiction cases and not a tribal divestiture of inherent sovereignty case. Re-imagining Hicks as a state jurisdiction case would not have changed the outcome but would have avoided the last twenty years of confusion surrounding how Hicks should be interpreted.
Highly recommended!
Stanford Law Review Online Student Essay Competition
The Stanford Law Review Online is excited to announce our student essay competition!
Two winners will each receive a $500 prize and publication of their up to 5,000 word essay. We encourage submissions from all current students (including LLMs) and recent graduates of any ABA-accredited American law school. We especially encourage submissions from those who have not yet published academic works.
Prompt:
Our theme this year is the ulterior or unintended effects of legal decisions. The law and those who practice it wield considerable power over the lives of the average person. It would be comforting to believe that those who make and interpret laws act with deliberate and benevolent purpose. But that is not always the case. Occasionally, perhaps even often, legal decisions have unintended or ulterior consequences. Sometimes those consequences can be humorous, such as a resident flaunting a Homeowner’s Association rule about paint color by plastering gaudy wallpaper on the outside of her home. Other times, those consequences can be much more tragic, as with exclusionary zoning laws that ensure an absence of affordable housing in affluent areas, exacerbating existing inequities and contributing to evictions and homelessness.
The Stanford Law Review invites current law students and recent alumni of any law school to discuss a legal instrument–including a contract clause, a court judgment, or a federal regulation–that had an unexpected or ulterior effect. We welcome submissions that apply this prompt to policing, the topic of SLR’s forthcoming symposium in coordination with Stanford BLSA.
Rules:
Our competition is open to current law students, LLMs, and graduates of the classes of 2020, 2019, and 2018 from ABA-accredited American law schools. Submissions are limited to one essay of up to 5,000 words (inclusive of footnotes) per person.
Submissions must be unpublished and exclusively submitted to this competition during the competition window, lasting from date of submission to date of final publication decision.
We will begin accepting pieces immediately and will close the submission window on January 4, 2021 at 11:59 PM. We aim to notify all applicants of publication decisions by January 18, 2021.
Please submit your essay as a Word document attachment in an email to Carly Grimes at cgrimes1@stanford.edu. This word document must be blinded. Your name must not appear in the document and you must follow instructions for removing identifying metadata available here: https://tinyurl.com/blindingessay
Direct any questions about the competition to Carly Grimes, cgrimes1@stanford.edu
Katherine Florey on Regulatory Sovereignty in the Pandemic
Katherine Florey has posted “Toward Tribal Regulatory Sovereignty in the Wake of the COVID-19 Pandemic,” forthcoming in the Arizona Law Review. Here is the abstract:
The media has often highlighted the devastating toll COVID-19 has taken in many parts of Indian country – and that, to be sure, is part of the story. But there are other aspects of the picture as well. On the one hand, tribes have taken resourceful and creative measures to combat COVID-19. On the other, a troublesome doctrinal landscape has complicated their efforts to do so. The judicially crafted Montana framework severely restricts tribal civil regulatory power over nonmembers – a particular problem during the COVID-19 pandemic, when nonmembers have defied tribal curfews, camped in prohibited areas, and opened businesses on reservations despite closure orders. While Montana nominally contains a “health and welfare” exception allowing tribes to exercise power over nonmembers in emergencies, its contours are too ambiguous and fact-specific to allow tribes to act with the certainty and speed they require. The pandemic thus provides a vivid illustration of the way in which Montana hinders effective tribal governance. Further, the pandemic has occurred at a moment when the Court may be more receptive than it has been in the past to arguments favoring tribal sovereignty – and at a time when many of the concerns about tribal regulation that motivated the Court four decades ago in Montana seem increasingly distant both from current doctrine and contemporary tribal realities. As a result, it is time, at a minimum, for the Court to expand Montana’s “health and welfare” exception to resemble something closer to the powers states possess to safeguard public health.
Wisconsin Journal of Law, Gender & Society Call for Papers: “Confronting Violence against Indigenous Women, Children, and Peoples”
Here:
WJLGS_Call_for_Papers_2021_FINAL
Proposals should be submitted to Lorenzo Gudino at gudino@wisc.edu and Jennifer Acevedo at acevedo3@wisc.edu no later than October 23, 2020. Submissions may be published and unpublished works. The Wisconsin Journal of Law, Gender & Society will likely publish accepted unpublished submissions. Authors of accepted submissions must virtually attend and present their work at the symposium on February 6, 2021. The organizers will communicate their decisions no later than November 15, 2020.
“The Ghost Road” Promotional Materials
My new book, “The Ghost Road: Anishinaabe Responses to Indian-Hating,” will be published in October 2020 by Fulcrum Publishing. You can pre-order. Here is a Media Kit PDF.
Warigia Bowman on COVID, Coal, and the Navajo Nation
Warigia M. Bowman has posted “Dikos Nitsaa’igii-19 (The Big Cough): Coal, COVID, and the Navajo Nation” on SSRN.
Here is the abstract:
This essay makes the following arguments. First, the US federal government knows how to electrify remote rural areas, and has in fact electrified rural areas as remote and inaccessible as the Appalachian Mountains. Yet, the US government has failed to electrify Navajo. Second, Navajo Nation is surrounded by power plants which send electricity to Phoenix, Los Angeles, and parts distant, yet transmission lines and infrastructure have not been properly extended from those power plants to inside of Navajo Nation. Third, the health risks of residential coal burning are well known, and given the health risks of COVID-19 and the fact that underlying respiratory conditions make the Navajo quite susceptible to this disease, the need to address this infrastructure gap is urgent.
Turtle Talk 
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