Here (PDF):
On Monday, January 30, 2017, Arizona Law will host a conference and book launch, featuring presentations by IPLP graduates Marren Sanders and Mary Guss, followed by a reception and book signing, with free copies available of the new publication “AIPRA — Writing Wills for Tribal Clients.”
Link: From the Reservation to College (subscription required)
An occasional series of articles on the transition to college for students from Browning High School on the Blackfeet Indian Reservation in Montana.
Robert Anderson has posted “Sovereignty and Subsistence: Native Self-Government and Rights to Hunt, Fish, and Gather After ANCSA,” forthcoming in the Alaska Law Review, on SSRN.
The abstract:
The Alaska Native Claims Settlement Act (ANCSA) was passed in 1971 to extinguish aboriginal rights of Alaska Natives and provide compensation for those rights extinguished. Instead of vesting assets (land and money) in tribal governments, Congress required the formation of Alaska Native corporations to receive and hold these assets. A major flaw in the settlement was the failure to provide statutory protections for the aboriginal hunting, fishing, and gathering rights extinguished by ANCSA. Moreover, while ANCSA did not directly address Alaska Native tribal status or jurisdiction, the Supreme Court interpreted the Act to terminate the Indian country status of ANCSA land. Subsequently, Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) was adopted in 1980 to provide a subsistence priority for rural Alaska residents, but the approach contemplated in Title VIII failed due to the State of Alaska’s unwillingness to participate. On the self-government front, state and federal courts have joined the federal Executive Branch and Congress in recognizing that Alaska Native tribes have the same legal status as other federally recognized tribes in the lower forty-eight states. The Obama Administration recently changed its regulations to allow land to be taken in trust for Alaska Native tribes, and thus be considered Indian country subject to tribal jurisdiction, and generally precluding most state authority. This article explains these developments and offers suggestions for a legal and policy path forward.
Here:
Vol. 40, No. 2 (2015-2016)
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Article
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A Pretty Smart Answer: Justifying the Secretary of the Interior’s “Seminole Fix” for the Indian Gaming Regulatory Act – Austin R. Vance
Special Feature
Here:
An Indian by Any Other Name: Cross-Border Affirmative Action
Forthcoming, 92 N.Y.U. L. REV. (2017)
Raymond J. Fadel
New York University (NYU), School of Law, Students
Date Posted: December 08, 2016
Dewi Ione Ball has published “The Erosion of Tribal Power: The Supreme Court’s Silent Revolution” with the University of Oklahoma Press.
Here is the book page.
Here is the blurb:
For the past 180 years, the inherent power of indigenous tribes to govern themselves has been a central tenet of federal Indian law. Despite the U.S. Supreme Court’s repeated confirmation of Native sovereignty since the early 1830s, it has, in the past half-century, incrementally curtailed the power of tribes to govern non-Indians on Indian reservations. The result, Dewi Ioan Ball argues, has been a “silent revolution,” mounted by particular justices so gradually and quietly that the significance of the Court’s rulings has largely evaded public scrutiny.
Ball begins his examination of the erosion of tribal sovereignty by reviewing the so-called Marshall trilogy, the three cases that established two fundamental principles: tribal sovereignty and the power of Congress to protect Indian tribes from the encroachment of state law. Neither the Supreme Court nor Congress has remained faithful to these principles, Ball shows. Beginning with Williams v. Lee, a 1959 case that highlighted the tenuous position of Native legal authority over reservation lands and their residents, Ball analyzes multiple key cases, demonstrating how the Supreme Cour
t’s decisions weakened the criminal, civil, and taxation authority of tribal nations. During an era when many tribes were strengthening their economies and preserving their cultural identities, the high court was undermining sovereignty. In Atkinson Trading Co. v. Shirley (2001) and Nevada v. Hicks (2001), for example, the Court all but obliterated tribal authority over non-Indians on Native land.
By drawing on the private papers of Chief Justice Earl Warren and Justices Harry A. Blackmun, William J. Brennan, Thurgood Marshall, William O. Douglas, Lewis F. Powell Jr., and Hugo L. Black, Ball offers crucial insight into federal Indian law from the perspective of the justices themselves. The Erosion of Tribal Power shines much-needed light on crucial changes to federal Indian law between 1959 and 2001 and discusses how tribes have dealt with the political and economic consequences of the Court’s decisions.
On SSRN, here:
Mitigating State Sovereignty: The Duty to Consult with Indigenous Peoples
67 University of Toronto Law Journal ___ (Forthcoming), Arizona Legal Studies Discussion Paper No. 16-42
S. James Anaya and Sergio Puig
University of Colorado Law School and University of Arizona Law School
Date Posted: November 30, 2016
Tribal, Federal, and State Laws Impacting the Eastern Shawnee Tribe, 1812 to 1945
The Eastern Shawnee Tribe of Oklahoma: Resilience through Adversity (University of Oklahoma Press 2017)
Robert J. Miller
Arizona State University (ASU) – Sandra Day O’Connor College of Law
Date Posted: November 29, 2016
Resurrecting the Third Sovereign in the United States Supreme Court
University of Illinois Law Review, 2017 Forthcoming
Bethany Berger
University of Connecticut School of Law
Date Posted: November 27, 2016
Download: Citizenship, Disenrollment & Trauma
Deron Marquez served as chairman of the San Manuel Band of Mission Indians from 1999
through April 2006. In addition to leading the seven-member Business Committee, he was
instrumental in designing and directing a progressive agenda of social, economic and governance development for the tribal government and community. Under his leadership, the Tribe has entered into successful business ventures with the goal of securing critical government revenues well into the future. The Tribe also enhanced its governance capabilities, instituted public services for tribal citizens and solidified intergovernmental relations at the local, state and national levels under his leadership. Marquez is a nationally-recognized speaker and lecturer on such issues as economic development, tribal governance and tribal sovereignty. He earned his undergraduate degree from the University of Arizona, a Masters degree in Politics and a Ph.D. in community health, politics and public policy from Claremont Graduate University.
Cathay Y.N. Smith has published “Oral Tradition and the Kennewick Man” (PDF) in the Yale Law Journal Forum.
An excerpt:
On the eve of the upcoming repatriation of the Kennewick Man, this Essay focuses on the Ninth Circuit Court of Appeals’ summary rejection of the oral-tradition13 evidence introduced by Native American claimants in Bonnichsen v. United States which, as we now know, was ultimately more reliable than the then-available written historical and scientific records upon which the court relied. Courts disadvantage Native American claimants when they summarily reject oral-tradition evidence and prohibit “a major source of their knowledge, transmitted orally, across time, and in a distinctive style, [from being] meaningfully . . . entered as evidence, with the same consideration as written historical evidence.”14 Furthermore, courts’ inconsistent treatment of oral tradition also results in uncertainty and deprives Native American claimants of clear guidelines on what evidence they should or should not submit to prove their claims. This Essay suggests four factors for courts to consider on a case-by-case basis in the future to evaluate the probative value of oral-tradition evidence. It then proceeds to examine the inconsistent treatment of oral tradition evidence by U.S. courts, and urges courts to employ a balanced approach and adopt the factors offered in this Essay when evaluating Native American oral tradition in legal cases involving Native Americans claimants.
M. Alexander Pearl has published “Redskins: The Property Right to Racism” in the Cardozo Law Review.
The abstract:
Everyone has an opinion, from President Obama to Matthew McConaughey, about the Washington football team name. This Article comprehensively analyzes the legal and social issues surrounding the mascot controversy. I focus my inquiry on the interaction of trademark law and Indian law. I offer three primary contributions in this Article. First, the current mainstream conception of harm caused by the team name is subjective, and I argue that the harm caused by the team name and logo is objective, testable, and demonstrable. Psychological research shows that these images harm Native people. Second, the remedies offered by the Lanham Act are wholly inadequate. Under section 2(a) of the Act, “disparaging” trademarks are subject to cancellation of federal registration benefits. This does little to economically affect the value of the trademark, thereby having no bearing on changing the name. Finally, I suggest a legislative solution that applies real economic pressure to change the team name. Utilizing the tool of express federal preemption, I suggest an approach that directly undermines the economic value of the trademark by precluding trademark infringement suits against unlicensed users of the trademark. This creates real pressure to change the name. Ultimately, this issue directly confronts the doctrinal inquiry into the extent of property rights in intellectual property forms.
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