Download Vol. 1 No.1 (Spring 2016) here.
First Issue of Indian Gaming Lawyer
Download Vol. 1 No.1 (Spring 2016) here.
Scholarship
New Papers from Kyle Whyte
Our good friend and MSU colleague Kyle Whyte (apparently one of the few diverse philosophers around) has been busy. Here is a sampling of his latest papers (from SSRN):
Indigenous Peoples, Climate Change Loss and Damage, and the Responsibility of Settler States
Kyle Whyte
Michigan State University – Department of Philosophy
Date Posted: April 27, 2016
Working Paper Series
Indigenous Food Systems, Environmental Justice, and Settler-Industrial States
2015. In Global Food, Global Justice: Essays on Eating under Globalization. Edited by M. Rawlinson & C. Ward, 143-156, Cambridge Scholars Publishing.
Kyle Whyte
Michigan State University – Department of Philosophy
Date Posted: April 27, 2016
Accepted Paper Series
Indigenous Environmental Movements and the Function of Governance Institutions
Whyte, K.P. 2016. Indigenous Environmental Movements and the Function of Governance Institutions. Oxford Handbook of Environmental Political Theory. Edited by T. Gabrielson, C. Hall, J. Meyer & D. Schlosberg, 563-580. Oxford University Press.
Kyle Whyte
Michigan State University – Department of Philosophy
Date Posted: April 27, 2016
Last Revised: May 02, 2016
Accepted Paper Series
Indigeneity and US Settler Colonialism
Forthcoming in Oxford Handbook of Philosophy and Race, Edited by Naomi Zack, Oxford University Press
Kyle Whyte
Michigan State University – Department of Philosophy
Date Posted: April 27, 2016
Accepted Paper Series
Indigenous Experience, Environmental Justice and Settler Colonialism
Kyle Whyte
Michigan State University – Department of Philosophy
Date Posted: April 27, 2016
Working Paper Series
Indigenous Food Sovereignty, Renewal and U.S. Settler Colonialism
The Routledge Handbook of Food Ethics, Forthcoming
Kyle Whyte
Michigan State University – Department of Philosophy
Date Posted: April 27, 2016
Accepted Paper Series
Our Ancestors’ Dystopia Now: Indigenous Conservation and the Anthropocene
Routledge Companion to the Environmental Humanities, Forthcoming
Kyle Whyte
Michigan State University – Department of Philosophy
Date Posted: April 27, 2016
Accepted Paper Series
Deadline Extended till May 23 for G. William Rice Bar Study Scholarship
Download flyer here.
New Paper Focuses on Double Taxation in Indian Country
Link to article here.
Citation and abstract:
Croman, K. S., & Taylor, J. B. (2016). Why beggar thy Indian neighbor? The case for tribal primacy in taxation in Indian country. Joint Occasional Papers on Native Affairs (JOPNA 2016-1). Tucson, AZ and Cambridge, MA: Native Nations Institute and Harvard Project on American Indian Economic Development.
The law governing taxation in Indian country is a mess. The accretion of common law precedents and the general tendency of states to assert primacy over the taxation of non-Indians create absurd outcomes. This article makes the case three ways. The argument based on the law shows that particularized, fact-specific precedents create a thicket of rulings that impede business development. The argument based on facts shows that these impediments to economic development harm not only tribal economies, but state and local economies, too. And the argument based on just claims testifies to the fact that the current arrangement could hardly have emerged from the actions of willing and informed governments operating in good faith. To borrow from Adam Smith, states beggar their Indian neighbors, seeking fiscal gain to the tribes’ detriment and, ultimately, their own. We conclude by recommending actions to bring fairness and certainty to the law governing taxation in Indian country.
Article Published by ABA, Enforcing Tribal Environmental Laws without “Treatment as a State”
Jill Grant has published an article on the Navajo Nation’s innovative petroleum storage tank inspection and enforcement program. The Resource Conservation and Recovery Act lacks a “treatment as a state” provision for Tribes, but the Navajo Nation has found other ways to develop a noteworthy program that enhances environmental protection, Tribal sovereignty, and self-determination.
Link to article here.
Professor Tsosie on Indigenous Identity & Sports Mascots
Professor Tsosie’s excellent Federal Lawyer article on identity and sports mascots is available below. Her longer law review article on these subjects is available here.
Tsosie Fed Lawyer Art on Mascots
As one of the curators of the Indian law columns for the Federal Lawyer, I am proud to have solicited this piece and grateful that she could squeeze writing it into her schedule.
New Student Scholarship on Indian Sports Mascots and Nicknames
The BYU Education and Law Journal has published “Between a Tomahawk and a Hard Place: Indian mascots and the NCAA” by Stephanie Jade Bollinger. [pdf]
An excerpt::
Thus, a reviewing court should find that agreements between Native American tribes and Universities granting approval for the use of Indian names as mascots should be void as against public policy. If the approval is found to be void, the NCAA would have a harder time basing approval as the primary factor for exemptions from its own mascot policy at championship games. Without the mascot exemption, more universities may decide to eliminate their use of Indian mascots and, in doing so, discontinue the harmful effects from their use of Indian mascots.
New Student Scholarship on Tribal Internet Gaming
The Jurimetrics Journal at ASU Law has published “A New Formula for Tribal Internet Gaming” by Racheal White Hawk. [pdf]
The abstract:
Tribal gaming is an industry that generates more than $27 billion a year. It comprises forty percent of all gaming in the United States, and has provided more than 628,000 jobs for Native and local communities. While tribal brick-and-mortar casinos contribute numerous economic, cultural, and social benefits to Native communities, Internet gaming profits are a potential boon. Internet gaming is well positioned for rapid growth because tens of millions of Americans use computers, cell phones, and tablets for shopping, games, and entertainment. Furthermore, with the advent of increasingly accurate geolocation technology, filtering, and blocking systems, the age and location of gamblers can be monitored, thus facilitating legal Internet gaming within state borders. Moreover, the potential for tax and licensing revenue from Internet gaming is immense, and states may enter into revenue-sharing agreements with tribes while offering exclusivity for tribal operators. For instance, in California, tribes contributed $467 million to state revenue in 2012 from brick and mortar casinos. States such as Delaware and New Jersey have legalized intrastate Internet gaming to reap tax revenue. California, however, has not yet legalized intrastate Internet gaming. Rather than wait for states to legalize intrastate Internet gaming, some tribes are launching their own online poker and bingo rooms to accept bets from players not located on Indian lands, asserting that doing so is legal under the Indian Gaming Regulatory Act (IGRA). However, some states disagree that it is legal under IGRA. To prevent impending expensive and time-consuming litigation and to support tribal economic development, Congress should reform the current regulatory patchwork of federal Internet gaming legislation by legalizing interstate Internet gaming, allowing states to opt out of the federal interstate Internet gaming scheme, and adding a new category specifically for Internet gaming to IGRA.
Fletcher & Singel on the Historical Basis for the Trust Relationship between the US and Indian Children
Fletcher & Singel have posted “Indian Children and the Federal Tribal Trust Relationship” on SSRN.
Here is the abstract:
This article develops the history of the role of Indian children in the formation of the federal-tribal trust relationship and comes as constitutional challenges to the Indian Child Welfare Act (ICWA) are now pending. We conclude the historical record demonstrates the core of the federal-tribal trust relationship is the welfare of Indian children and their relationship to Indian nations. The challenges to ICWA are based on legally and historically false assumptions about federal and state powers in relation to Indian children and the federal government’s trust relationship with Indian children.
Indian children have been a focus of federal Indian affairs at least since the Framing of the Constitution. The Founding Generation initially used Indian children as military and diplomatic pawns, and later undertook a duty of protection to Indian nations and, especially, Indian children. Dozens of Indian treaties memorialize and implement the federal government’s duty to Indian children. Sadly, the United States then catastrophically distorted that duty of protection by deviating from its constitution-based obligations well into the 20th century. It was during this Coercive Period that federal Indian law and policy largely became unmoored from the constitution.
The modern duty of protection, now characterized as a federal general trust relationship, is manifested in federal statutes such as ICWA and various self-determination acts that return self-governance to tribes and acknowledge the United States’ duty of protection to Indian children. The federal duty of protection of internal tribal sovereignty, which has been strongly linked to the welfare of Indian children since the Founding, is now as closely realized as it ever has been throughout American history. In the Self-Determination Era, modern federal laws, including ICWA, constitute a return of federal Indian law and policy to constitutional fidelity.
Angela Riley & Kristen Carpenter Publish “Owning Red”
Angela R. Riley and Kristen A. Carpenter have published “Owning Red: A Theory of Indian (Cultural) Appropriation” (PDF) in the Texas Law Review.
Here is the abstract:
In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group of the cultural expressions and resources of another. While these and other incidents make contemporary headlines, American Indians often experience these claims within a historical and continuing experience of dispossession. For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands, artifacts, bodies, religions, identities, and beliefs, all toward the project of conquest and colonization. Indian resources have been devalued by the law and made available for non-Indians to use for their own purposes. Seeking redresses for the losses caused by these actions, tribes have brought claims under a variety of laws, from trademark and copyright to the First Amendment and Fifth Amendment, and some have been more successful than others. As a matter of property law, courts have compensated—albeit incompletely—the taking of certain Indian lands and have also come to recognize tribal interests in human remains, gravesites, and associated artifacts. When it comes to intangible property, however, the situation is more complicated. It is difficult for legal decision makers and scholars alike to understand why Indian tribes should be able to regulate the use of Indian names, symbols, and expressions. Indeed, non-Indians often claim interests, sounding in free speech and the public domain, in the very same resources. To advance understanding of this contested area of law, Professor Riley and Professor Carpenter situate intangible cultural property claims in a larger history of the legal dispossession of Indian property—a phenomenon they call “Indian appropriation.” It then evaluates these claims vis-à-vis prevailing legal doctrine and offers a normative view of solutions, both legal and extralegal.
Turtle Talk 
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