Here:
2018 James R. Browning Symposium Keynote
Matthew L.M. Fletcher
Sovereign Metaphors in Indian Law
Gregory Ablavsky
From Foundational Law to Limiting Principles in Federal Indian Law
Alexander T. Skibine
On Indian Children and the Fifth Amendment
Matthew L.M. Fletcher
United States v. Gillette: A Tiny Prairie Casenote Opening a Window on the Enveloping Fog Obscuring the Indian Civil Rights Act of 1968
Frank Pommersheim
Michael Doran has posted “Redefining Tribal Sovereignty for the Era of Fundamental Rights” on SSRN. It is forthcoming in the Indiana Law Journal.
The abstract:
This article explains a longstanding problem in federal Indian law. For two centuries, the U.S. Supreme Court has repeatedly acknowledged the retained, inherent sovereignty of American Indian tribes. But more recently, the Court has developed the implicit-divestiture theory to deny tribal governments criminal and civil jurisdiction over non-members, even with respect to activities on tribal lands. Legal scholars have puzzled over this move from a territorial-based definition of tribal sovereignty to a membership-based definition; they have variously explained it as the Court’s abandonment of the foundational principles of Indian law, the product of the Court’s indifference or even racist hostility to Indians, or a simple lack of doctrinal coherence in the Court’s decisions. This article provides a different explanation. The implicit-divestiture cases represent the Court’s effort to address a trilemma among three incompatible objectives: preservation of the traditional territorial-based definition of tribal sovereignty; preservation of tribal governments’ placement outside the federalist structure of the constitutional order; and preservation of fundamental rights. The Court has chosen to resolve the trilemma by redefining tribal sovereignty to deny tribal jurisdiction over non-members. Whether right or wrong, the implicit-divestiture theory is the Court’s good-faith attempt to preserve as much tribal sovereignty as possible without infringing on fundamental rights or forcing tribal governments into the federalist structure.
4 New York’s Quest for Jurisdiction over Indian Lands by Hon. Carrie Garrow
20 New York State’s Recent Judicial Collaboration with Indigenous Partners: The Story of New York’s Federal-State-Tribal Courts and Indian Nations Justice Forum by Hon. Marcy L. Kahn
34 The Origins and Evolution of the Indian Child Welfare Act by Danielle J. Mayberry
48 Thomas Indian School: Social Experiment Resulting in Traumatic Effects by Lori V. Quigley, Ph.D.
Here:
Lobbying as a Strategy for Tribal Resilience
Kristen Matoy Carlson
The Reports of Our Death Are Greatly Exaggerated – Reflections on the Resilience of the Oneida Indian Nation of New York
Allison M. Dussias
Changing Family Courts to Help Heal and Build Resilient Families
Carrie E. Garrow
Sovereign Resilience: Reviving Private-Sector Economic Institutions in Indian Country
Robert J. Miller
Resilience and Native Girls: A Critique
Addie C. Rolnick
Cultivating Professional Identity and Resilience Through the Study of Federal Indian Law
Michalyn Steele
Frank Pommersheim has published “I Was So Much Older Then/I’m Younger Than That Now: Valedictory Notes and Collage” in the South Dakota Law Review (pdf).
Here is an excerpt:
Teacher, Scholar, Tribal Justice, Colleague. These are theseasons turning and braiding across my years and decades in thefield, the factory, and the monastery of my work and vocation.The toil of craft and building community. Yet there is alsosomething valedictory and elegiac that guides this pen and spillsthis ink in the desire to provide both a professional and personalsense of my thirty-five years of service at the University of SouthDakota School of Law (hereinafter USD).
Michael C. Blumm and Cari Baermann have posted “The Belloni Decision and Its Legacy: United States v. Oregon and Its Far-Reaching Effects After a Half-Century” on SSRN. It is forthcoming in Environmental Law.
Abstract:
Fifty years ago, Judge Robert Belloni handed down an historic treaty fishing rights case in Sohappy v. Smith, later consolidated into United States v. Oregon, which remains among the longest running federal district court cases in history. Judge Belloni ruled that the state violated Columbia River tribes’ treaty rights by failing to ensure “a fair share” to tribal harvesters and called upon the state to give separate consideration to the tribal fishery and make it management priority co-equal with its goals for non-treaty commercial and recreational fisheries. This result was premised on Belloni’s recognition of the inherent biases in state regulation, despite a lack of facial discrimination.
The decision was remarkable because only a year before, in Puyallup Tribe v. Department of Game, the U.S. Supreme Court seemed to accord considerable deference to state regulation of tribal harvests (which it would soon clarify and circumscribe). Instead of deference, the Belloni decision reinstated burdens on state regulation that the Supreme Court had imposed a quarter-century earlier, in Tulee v. Washington, but seemed to ignore in its Puyallup decision. The directive for separate management was prescient because otherwise, tribal harvests would remain overwhelmed by more numerous and politically powerful commercial and recreational fishers.
Judge Belloni eventually grew tired of resolving numerous conflicts over state regulation of the tribal fishery, calling for the establishment of a comprehensive plan, agreed to by both the state and the tribes, to manage Columbia Basin fish harvests. Eventually, such a plan would be negotiated, implemented, and amended over the years. Today, the Columbia River Comprehensive Management plan is still in effect a half-century after the Belloni decision, although the district court’s oversight role is now somewhat precariously perched due to statements by Belloni’s latest successor. Nonetheless, the plan remains the longest standing example of tribal-state co-management in history and a model for other co-management efforts. This article examines the origins, effects, and legacy of the Belloni decision over the last half-century.
When we think about data, and how it’s been gathered, is that, from marginalized communities, it was never gathered to help or serve us. It was primarily done to show the deficits in our communities, to show where there are gaps. And it’s always done from a deficit-based framework. They talk about how our communities have the highest rates of obesity, have the highest rates of diabetes, highest rates of infant mortality. How our people may be experiencing high rates of opiate misuse.
What they don’t talk about is the strengths of our community. What we know, particularly for indigenous people, is that there was a genocide and assimilation policies and termination policies that were perpetuated against us. If they had worked, we wouldn’t be here. And so we were always strength-based people, who passed on and continued knowledge systems regardless of people who tried to destroy us.
Here:
Trust Lands for the Native Hawaiian Nation: Lessons from Federal Indian Law Precedents
Lane Kaiwi Opulauoho
Indigenous Peoples, the International Trend Toward Legal Personhood for Nature, and the United States Hannah White
Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District: A Tribe’s Successful Fight for Federally Reserved Water Rights
Alyssa Lankford
Here:
Lessons from Batson in a Comparative Criminal Context: How Implicit Racial Biases Remain Unaddressed in Canadian Jury Section
Brittney Adams
Tribal Treaty Rights and Natural Resource Protection: The Next Chapter United States v. Washington – The Culverts Case
Richard Du Bey, Andrew S. Fuller, and Emily Miner
Gregory Ablavsky has published “Empire States: The Coming of Dual Federalism” in the Yale Law Journal (PDF).
Here is the abstract:
This Article offers an alternate account of federalism’s late eighteenth-century origins. In place of scholarly and doctrinal accounts that portray federalism as a repudiation of models of unitary sovereignty, it emphasizes the federalist ideology of dual sovereignty as a form of centralization—a shift from a world of diffuse sovereignty to one where authority was increasingly imagined as concentrated in the hands of only two legitimate sovereigns.
In making this claim, the Article focuses on two sequential late eighteenth-century transformations. The first concerned sovereignty. Pre-Revolutionary ideas about sovereignty reflected early modern corporatist understandings of authority as well as imperial realities of uneven jurisdiction. But the Revolution elevated a new understanding of sovereignty in which power derived from the consent of a uniform people. This conception empowered state legislatures, which, throughout the 1780s, sought to use their status under new state constitutions as the sole repositories of popular authority to subordinate competing claims to authority made by corporations, local institutions, Native nations, and separatist movements.
The second shift came with the drafting and ratification of the U.S. Constitution, which bolstered federal authority partly in order to protect state authority against internal competitors—an aim reflected in the Guarantee and New State Clauses. Ultimately, the Constitution both limited and enhanced state authority; it entrenched a framework of dual sovereignty. After ratification, competitors to state sovereignty were increasingly constrained to appeal to some federal right or power. What had previously been contests among supposedly coequal sovereigns—what modern scholars would call horizontal federalism—became questions of vertical federalism, issues of whether federal authority would vindicate states or their opponents.
Although the Article concludes with some implications of this history for present-day federalism doctrine and theory, its primary contribution is descriptive. Judges and lawyers routinely and almost unthinkingly invoke localism and power diffusion as the historical values of federalism. Yet the history explored here challenges whether these near-universal assumptions about federalism’s aims actually reflect what federalism was designed to accomplish.
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