Arizona Law Review announces its publication of Galanda and Dreveskracht’s piece entitled Curing the Tribal Disenrollment Epidemic: In Search of a Remedy, which has been described as “a must read for all of Indian country” by Indian law scholar Robert A. Williams, Jr. Please see the press release for additional information.
Scholarship
New Scholarship on Tribal Emergency Declarations
Gregory Sunshine and Aila Hoss have posted “Emergency Declarations and Tribes,” forthcoming in the Michigan State University International Law Review.
An excerpt:
Tribes are sovereign nations that maintain a government-to-government relationship with the Unites States. As sovereign entities, tribes have inherent authority to protect the public health and welfare of their citizens. Tribes thus have the authority to undertake measures to prepare and manage public health emergencies in the manner most appropriate for their communities. Coupled with existing federal statutes, there are multiple mechanisms for tribes, either directly or through a state or the US federal government, to declare an emergency or receive the benefits of a federal declaration. This article summarizes several types of emergency declarations, including tribal declarations, Stafford Act declarations, and federal public health emergency declarations, and their implications for tribes.
New Student Scholarship on the Environmental Impact of Federal Recognition of American Indian Nations
The Boston College Environmental Affairs Law Review has published “People of the Outside: The Environmental Impact of Federal Recognition of American Indian Nations” (PDF).
Here is the abstract:
American Indians interact with land and the environment in a manner that is distinct from non-native peoples. They view natural resources as an integral part of their way of life. As a result, Indian tribes desire to implement policies and programs that will protect their natural resources. In order to receive federal assistance for these policies and programs, however, a tribe must be federally recognized. The Duwamish tribe, which resides near Seattle, Washington, is not a federally recognized tribe. Despite years of fighting for recognition, the Duwamish cannot take part in the improvement of their tribal region’s air and water quality. Alternatively, the Forest County Potawatomi Community is federally recognized. The tribe has utilized its federal status to redesignate its reservation lands under the Clean Air Act, which brings stricter environmental regulations on and around the reservation. As long as the Bureau of Indian Affairs’ criteria for federal recognition continue to be arbitrarily and haphazardly enforced, unrecognized tribes like the Duwamish will continue to lack the power to address the environmental issues in their tribal region, in contravention of their fundamental beliefs and way of life.
New Scholarship on American Indian Probate Reform Act
David Armstrong has published “Estate Planning for American Indians: AIPRA for the General Practitioner” (PDF) in the Denver University Law Review Online.
An excerpt:
Indian law is sometimes viewed as niche practice area limited to those who work directly with tribes or those who work on or near a reservation. Despite this perception the general practitioner regardless of where they work should have passing familiarity with laws which affect tribal members who often reside outside of reservations. Two primary examples of this are the Indian Child Welfare Act and the American Indian Probate Reform Act (AIPRA). While the former is a subject worthy of an extended discussion this article will focus exclusively on AIPRA and related acts which effect the estate plans of American Indians wherever they live.
New Student Scholarship on Medicaid and Indian Tribes
Here is “Medicaid: Can Federal Responsibilities, State Authorities, and Tribal Sovereignty be Reconciled?,” published in the Wyoming Law Review.
An excerpt:
The decisions made by state governments related to Medicaid funding of American Indian and Alaska Native health care is not consistent with either the federal responsibility or the unique government-to-government relationship the Tribes have with the federal government. The United States Supreme Court’s recent decision allowing optional Medicaid expansion for states further emphasizes how state authority in Medicaid implementation decisions impacts federally funded care delivered to American Indians and Alaska Natives. American Indians and Alaska Natives are disproportionally impacted in states not expanding Medicaid.
New Book — Jill Doerfler’s “Those Who Belong”
Jill Doerfler has published “Those Who Belong: Identity, Family, Blood, and Citizenship among the White Earth Anishinaabeg.”
Michigan State University Press did the honors.
This is very exciting! An important moment in the study of Anishinaabe law and modern tribal membership.
UCLA School of Law Symposium — The Next Frontier in Federal Indian Law: Building on the Foundational Work of Carole E. Goldberg
Save the Date!
February 5, 2016
This Symposium will focus on cutting edge issues in federal Indian law and, in so doing, celebrate the 40+ year career of Jonathon D. Varat Professor of Law Carole E. Goldberg. Federal Indian law, broadly defined, governs the relationship between the federal government and the more than 566 Indian nations within the United States, as well as implicating states’ rights and raising questions that bear on tribal law and issues of self-determination. Drawing on the richness and breadth of the field, the Symposium will cover topics related to constitutional law (such as federalism, sovereignty, and equal protection), civil procedure (such as conflict of laws, subject matter jurisdiction, and venue), criminal law (including complex jurisdictional issues over prosecution), and other cutting edge issues (such as gaming, taxation, protection of natural resources, and international human rights law). In a lively, critical event, we will engage the work of Professor Goldberg, but then use her scholarship as a springboard to further explore the vigorous debate around these timely issues.
Contact Professor Angela R. Riley riley@law.ucla.edu for more details.
Obergefell Oral Arguments and Related News
SCOTUS Blog has posted a great round-up of the commentary so far on the oral arguments in Obergefell vs. Hodges, heard Tuesday morning. Obergefell is the same-sex marriage case currently before the Supreme Court, in which the Court is slated to decide both whether states may prohibit same-sex couples from marrying and whether they may refuse to recognize same-sex marriages performed in other jurisdictions. The arguments appear to have been a mixed bag, with many inferring that Justice Kennedy, who will almost certainly be the swing vote, is still deciding. I found this piece on the oral arguments by Lyle Denniston helpful and interesting. As for what a pro-same-sex marriage decision from the Court would mean for tribes, the short answer is that it wouldn’t be binding but most likely would be seen as strong persuasive authority in most tribal courts. Here’s a short article by Anthony Broadman on that issue (which also quotes my forthcoming law review article). And, somewhat relatedly, Indian Country Today has just published an article on the journeys of the Suquamish and Little Traverse Tribes toward marriage equality.
New Scholarship on Legal Incidence Doctrine in Indian Taxation Cases
David Y. Kwok has posted “Taxation Without Compensation as a Challenge for Tribal Sovereignty” on SSRN. The paper is forthcoming in the Mississippi Law Journal.
Here is the abstract:
For over 150 years federal courts have held that Indian tribes have immunity from state taxes based upon the sovereignty of tribal lands. The principle of land-based tax immunity, however, has proven difficult to apply in the context of commodity goods like gasoline and cigarettes, which can freely move across state and tribal borders. Should state residents be able to avoid state cigarette taxes by driving onto tribal lands to make purchases? The result has been decades of questionable yet high-stakes litigation between states and tribes over a tax’s “legal incidence,” a judicial fiction that ignores economic reality. I propose a two-part solution to the problem of commodity taxation that will reduce such litigation while also doing justice to both state and tribal interests. First, courts should employ a broad reading of the legal incidence test described in Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95 (2005), so as to clearly establish a state’s right to apply nondiscriminatory commodity taxes to sales occurring on tribal lands. To offset the state’s broad taxation power, courts should expand tribal sovereignty beyond tax immunity to also include a tribe’s right to an equitable portion of those commodity tax revenues. The combination of these judicial choices will discourage ongoing litigation and promote equitable negotiated results between states and tribes regarding commodity taxes.
New Scholarship on Arizona v. California
Amy Cordalis and Daniel Cordalis have published “Indian Water Rights: How Arizona v. California Left an Unwanted Cloud over the Colorado River Basin” in the Arizona Journal of Environmental Law.
The abstract:
The Colorado River is one of the most important rivers in the world. The river’s 1,400-mile journey from the Rocky Mountains to the Sea of Cortez takes on waters from seven states and from the reservations of twenty-eight Indian tribes along the way, 244,000 square miles of river basin in all. The Colorado River is also heavily managed: Its waters are allocated through a complex body of laws collectively referred to as the “Law of the River,” which includes an international treaty, two interstate water compacts, numerous federal and state statutes, and more than a dozen Indian water rights settlements. For thousands of years before the Law of the River, however, American Indians lived and irrigated within the Colorado River Basin, making due with its characteristically seasonal rains and difficult growing conditions. Today, in a cruel but all-too common twist for tribes, twelve of the basin’s twenty-eight tribes have not had their water rights completely quantified, leaving many of the basin’s oldest inhabitants without a legally secure source of water. This begs the question of how the Law of the River developed such that the Colorado River is already over-allocated but Indian water rights are to a large extent unaccounted for, and tribes—occupying and using water in the basin since time immemorial—are left struggling for whatever remaining drops they can squeeze out of the basin. And, perhaps more to the point, the question arises how Arizona v. California recognized this exact issue in the Lower Colorado River Basin and could not to fully resolve it. This article finally takes the position that tribes, the states, and the federal government must work together to settle Indian water rights claims to provide certainty to all Colorado River basin water users amidst growing undertainty from polulation growth and climate change.
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