Here:
I See You – A Story from the Haudenosaunee
Simone Anter J.D.
Indian Child Welfare Act Annual Case Law Update and Commentary
Kathryn Fort and Adrian T. Smith
August 2016 – August 2017 Case Law on American Indians
Thomas P. Schlosser
CDIB: The Role of the Certificate of Degree of Indian Blood in Defining Native American Legal Identity
Paul Spruhan
Grant Christensen has posted “Civil Rights Notes: American Indians and Banishment, Jury Trials, and the Doctrine of Lenity,” forthcoming in the William & Mary Bill of Rights Journal.
The syllabus:
Indian defendants appearing before tribal courts are not protected by the Bill of Rights. Instead, Congress enacted the Indian Civil Rights Act in 1968 to extend some, but not all, constitutional protections unto Indian reservations. Fifty years later and there continues to be extensive litigation surrounding ICRA.
This paper looks at all of the ICRA cases decided in 2017 to attempt to evaluate the merits of ICRA’s protections of tribal rights. The picture is decidedly mixed. From these cases the paper calls for three changes that directly respond to trends in civil rights litigation. 1) The paper suggests that courts expand the understanding of habeas jurisdiction to extend when an individual has been banished. It argues that banishment is a form of confinement and a restriction of liberty – albeit one where the jail cell is large, essentially the world minus the reservation. 2) Tribes must adopt codes that provide for a trial by jury and rules for determining who constitutes the jury and how it may be empaneled. While ICRA provides for a trial by jury, tribal courts have an affirmative duty to inform defendants of their right to request a jury trial. It is a violation of ICRA if the tribe does not make provisions for a jury when requested. 3) Finally tribal court judgments, when used in other forums, may be ambiguous because tribal law and tribal procedures are distinct from those followed by states or the federal system. Accordingly, any ambiguity that arises in response to a tribal court judgment should be resolved with a reference to the doctrine of lenity.
Kristen A. Carpenter and Angela R. Riley have posted their fascinating article, “Privatizing the Reservation?“, on SSRN. The article is forthcoming in the Stanford Law Review. Here is the abstract:
The problems of American Indian poverty and reservation living conditions have inspired various explanations. One account advanced by certain economists and commentators is now animating the Trump administration’s apparent desire to ‘privatize’ Indian lands, namely that reservation poverty is rooted in the federal Indian trust arrangement, which preserves the tribal land base by limiting the marketability of lands within reservations. Policy makers are advocating for measures that would promote the individuation and alienability of tribal lands, while diminishing federal and tribal oversight, toward wealth maximization. Taking a different view, this Article complicates and challenges the narrative of Indian poverty and land tenure advanced by advocates for privatization. We focus on real estate and housing in Indian Country to make three points. First, we argue the salience of American Indian homelands as places of collective religious significance, socio-economic sustenance, and territorial governance has been lost in the privatization debate, which also largely disregards issues of remedial justice associated with conquest and colonization. Second, we introduce to the legal literature new empirical data and economic analysis demonstrating that the current system of land tenure in Indian Country is much more varied, and recent innovations in federal-tribal housing and finance programs are more promising, than some of the calls for privatization would suggest. Finally, using specific examples from Indian Country, we highlight a model of indigenous self-determination and sustainability, rooted in the international human rights movement, that deserves attention in ongoing domestic policy debates with the potential to advance the well-being of humanity more broadly.
Matthew Ramirez has published “New Mexico Tribal Cannabis: Policy, Politics, &
Guidance for Government-to-Government Cooperation in State-Tribal Cannabis Compacting” in the Natural Resources Journal. Here is the abstract:
The purpose of this article is three-fold. First, it aims to provide a systematic review of international, United States, state, and federal Indian law and policy surrounding cannabis cultivation, possession, and use in Indian Country. Second, it argues that the 2017 New Mexico tribal medical cannabis bills (SB 345 & HB 348), which were introduced in the first regular session of the New Mexico State Legislature and would have permitted the state to enter into intergovernmental agreements (or compacts) with tribes who choose to implement the state’s medical cannabis program on tribal lands, contained legal vulnerabilities likely to hinder their effectiveness if passed into law. Third, and as a result of this legal and political environment, this article serves as a tribal cannabis policy resource for New Mexico legislators and as a proposal of model legislation and compact terms for the drafting of effective tribal medical cannabis legislation and state-tribal cannabis compacts. Part I provides a historical and legal overview of international and United States federal controlled substances law and policy. Part II explores the issues arising in federal Indian cannabis law and regulation, including: state criminal jurisdiction over non-Public Law 280 tribal lands, state taxation in Indian Country, tribal sovereign immunity, and state-tribal dispute resolution. Part III covers New Mexico cannabis law, including a discussion of the state medical cannabis regulatory apparatus and policy analysis of the 2017 New Mexico tribal medical cannabis bills. Part IV closely analyzes the pros and cons of the 2017 New Mexico tribal medical cannabis bills and provides recommendations for future effective tribal medical cannabis legislation and compact drafting. Finally, Part V puts forward a model tribal medical cannabis bill and state-tribal cannabis compact terms reflecting the legal conclusions drawn herein, which may serve as constructive guidance in a future legislative session or compact negotiations between New Mexico and the Indian nations, tribes, and pueblos within the state.
Posted in SSRN, here.
The abstract:
Fifty years ago, President Lyndon Johnson appointed a blue ribbon panel called the National Advisory Commission on Civil Disorders to examine the causes of urban riots that happened during the summer of 1967. The Kerner Commission, as the group came to be known, produced a report on March 1, 1968, that identified some of the causes of the unrest. The Kerner Commission report found the riots to be rooted in crushing urban poverty and recommended solutions that would address those deep issues, such as job training, living wages, and funding for public schools. To commemorate the 50th Anniversary of this work and to refocus attention on these important issues, the last living member of the Kerner Commission, former U.S. Senator Fred Harris, compiled a book “Healing our Divided Society: Investing in America Fifty Years After the Kerner Report” that revisits some of these issues. Harris invited several scholars to contribute to the book, including Professor Joseph Stiglitz, Professor Washburn. Professor Washburn contributed the attached essay which highlights the changes that have occurred in federal Indian policy in the last 50 years and makes recommendations about continuing efforts to address poverty there.
Here is “Failed Protectors: The Indian Trust and Killers of the Flower Moon,” forthcoming in the Michigan Law Review.
Abstract:
This Review uses Killers of the Flower Moon as a jumping off point for highlighting for readers how so many Indian people in Indian country can be so easily victimized by criminals. And yet, for however horrible the Osage Reign of Terror, the reality for too many Indian people today is much much worse. The federal government is absolutely to blame for these conditions. This Review shows how policy choices made by all three branches of the federal government have failed Indian people. Part I establishes the federal-tribal trust relationship that originated with a duty of protection. Part II establishes how the United States failure to fulfill its duties to the Osage Nation and its citizens allowed and even indirectly encouraged the Osage Reign of Terror. Part III offers thoughts on the future of the trust relationship in light of the rise of tribal self-determination. Part IV concludes the Review with a warning about how modern crime rates against Indian women and children are outrageously high in large part because of the continuing failures of the United States.
On SSRN, here.
Abstract:
This paper summarizes the topics and trends in Indian law confronted by courts in 2017. Designed as an update that will be useful to practitioners as well as scholars, the paper breaks the discussion down into more than forty topics and subtopics. For this paper I tracked and read all 646 judicial opinions issued by state and federal courts that squarely decided questions of federal Indian law. From those cases I have distilled this update. Ideally the first in an annual collection.
The paper includes an empirical discussion of Indian law looking at which circuits and districts are presented with the most Indian law questions. It also examines what topics receive the most coverage providing a summary of more than 200 ICWA opinions as well as capturing obscure topics like the 4 cases decided on the Navajo-Hopi Rehabilitation Act. It captures important moments in Indian law like Justice Thomas dissenting from denial of cert. in a land into trust case but also highlights the return of Leonard Peltier to federal court.
I hope the user finds this comprehensive update a useful survey of Indian law in 2017.
Here:
Foreword: Diversity in the Legal Academy After Fisher II
Intersectional Barriers to Tenure
Race, Cognitive Biases, and the Power of Law Student Teaching Evaluations
Echoes of Slavery II: How Slavery’s Legacy Distorts Democracy
The Power of Imagination: Diversity and the Education of Lawyers and Judges
Grant Christensen (The University of North Dakota) and Melissa L. Tatum (University of Arizona – James E. Rogers College of Law) have posted “Reading Indian Law: Evaluating Thirty Years of Indian Law Scholarship,” forthcoming in the Tulsa Law Review.
Here is the abstract:
This article surveys thirty years of law review articles and compiles a formal ranking system to create a list of the 100 most influential Indian law scholarly pieces from the last thirty years. As Indian law has grown from a niche field offered by a couple schools to a robust legal discipline it is now impossible for the thousands of professors, students, practitioners, and judges to identify the most important pieces published each year. This piece, with its first of its kind approach to ranking Indian law scholarship, has the potential to not only highlight other important works but to become an article that is itself the focus of conversation.
Judge Gregory Bigler has posted “Traditional Jurisprudence and Protection of Our Society: A Jurisgenerative Tail” on SSRN. Here is the abstract:
This paper is an exercise in self-discipline organizing thoughts from a long period of work and life that explores some of what uniquely guides traditional Euchee and Muscogee society. I use my participation in traditional Euchee ceremonial life as a lens with which to view tribal, federal and human rights law and processes. By so doing I hope to begin articulating a modern traditional Indian jurisprudence and find some source(s) to aid in preservation of native society. In order to truly reform federal Indian law not only must traditional tribal jurisprudence be acknowledged, but the processes used by ceremonial people must be understood, and utilized, in a transformative effort. While I am informed by discussions with friends from other tribes who hold similar beliefs to my Euchee people, however, I write from the perspective of a Polecat Euchee ceremonial stomp ground member. I believe the validity of my observations depends on the discussions being tribal specific, meaning I do not simply refer to “Indian” traditions but rather to Euchee, Muscogee, Shawnee, etc., traditions. Such traditional jurisprudence must be a foundation of the current international indigenous rights efforts regarding sacred sites and artifacts, religious practices and culture if those efforts are to have meaning. If Indian advocates are unable to articulate what we believe and the nature of the society being destroyed it is more difficult to argue for its’ continuity. Perhaps more importantly, we must be able to explain to ourselves what we believe, teaching our own people and incorporating those beliefs into our own tribal institutions thus continuing (or creating) a social-legal system that can carry us into the future. I hope the process I explore herein will also be of interest to my friends and colleagues exploring federal Indian law and international human rights.
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