Jason Robison has posted his forthcoming paper, “Wyoming’s Big Horn General Stream Adjudication, 1977-2014,” on SSRN. It is forthcoming in the Wyoming Law Review.
An excerpt:
Aimed at addressing water rights in the State of Wyoming’s portion of the Wind/Big Horn Basin, including those held by the Eastern Shoshone and Northern Arapahoe tribes on the Wind River Indian Reservation, the Big Horn general stream adjudication is currently poised to draw to a close after 37 years. This article offers an overview of this complex and often contentious legal proceeding, relying mainly on primary sources contained in a digital archive, and situates the adjudication within the broader context of western water law.
Current Utah law prof Alex Skibine and Melanie Beth Olivero published a scathing critique of the Supreme Court’s decision in Oliphant v. Suquamish Indian Tribe in the American Indian Journal:
American Indian Journal article
Of particular note is the prediction that non-Indian crime would go unpunished.
Jacob Russ and Thomas Stratman have posted “Missing Sticks: Property Institutions and Income Dissipation in Indian Country” on SSRN.
Here is the abstract:
This paper analyzes the economic consequences of property institutions. Federal land reform policy privatized American Indian reservation land in the 1880s. This reform intended to foster economic development on American Indian reservations by creating a system of individual private property. However, these new ownership rights were incomplete and accompanied by restrictions that have led to the fragmentation of land parcels into millions of shared ownership claims. Because land rights on Indian reservations do not include all of the sticks in the traditional property rights bundle, Indians face higher costs for real estate transactions. These additional costs preclude exchange and impede the productive use of reservation-land resources. Using data on Indian land ownership and agricultural leases in 2010, we provide the first quantitative evidence that incomplete property rights have worsened economic outcomes on Indian reservations. Our results show that increased ownership fractionation has reduced the incomes of American Indians on reservations and is associated with lower agricultural lease income, a measure of land productivity.
The Connecticut Law Review has published “Mashantucket Pequot Tribe v. Town of Ledyard: The Preemption of State Taxes Under Bracker, the Indian Trader Statutes, and the Indian Gaming Regulatory Act.” It is here on SSRN.
Here is the abstract:
The Indian Tribes of the United States occupy an often ambiguous place in our legal system, and nowhere is that ambiguity more pronounced than in the realm of state taxation. States are, for the most part, preempted from taxing the Indian Tribes, but something unique happens when the state attempts to levy a tax on non-Indian vendors employed by a Tribe for work on a reservation. The state certainly has a significant justification for imposing its tax on non-Indians, but at what point does the non-Indian vendor’s relationship with the Tribe impede the state’s right to tax? What happens when the taxed activity is a sale to the Tribe? And what does it mean when the taxed activity has connections to Indian Gaming?
This Comment explores three preemption standards as they were interpreted by the Second Circuit Court of Appeals in a case between the State of Connecticut and the Mashantucket Pequot Tribe. In deciding whether preemption was the legally required outcome, the Court looked to and applied the landmark preemption analysis case White Mountain Apache Tribe v. Bracker, the Indian Trader Statutes, and the Indian Gaming Regulatory Act. While more than one legally correct outcome exists in this case, this Comment endorses and argues in favor of preemption based on the application of the Indian Gaming Regulatory Act and the preemption analysis required by Bracker.
Kirsten Matoy Carlson has published “Congress and Indians” (PDF) in the University of Colorado Law Review. Here is the abstract:
Contrary to popular narratives about courts protecting certain minority rights from majoritarian influences, Indian nations lose in the United States Supreme Court over 75 percent of the time. As a result, scholars, tribal leaders, and advocates have suggested that Congress, as opposed to the courts, may be more responsive to Indian interests and have turned to legislative strategies for pursuing and protecting tribal interests. Yet very little is known about the kinds of legislation Congress enacts relating to American Indians. This Article charts new territory in this understudied area and responds to recent calls for more empirical legal studies in the field of federal Indian law by enhancing understandings of the amount and kinds of Indian-related legislation enacted by Congress. Based on an analysis of 7799 Indian-related bills, the Article expounds a basic typology of the kinds of Indian-related legislation introduced and enacted by Congress from 1975 to 2013. The Article reports a higher enactment rate for Indian-related legislation as compared to the enactment rate of all bills introduced in Congress. This finding problematizes traditional narratives about the success of minority groups in the political process and has serious implications for how scholars and advocates understand congressional policymaking. Further, the Article shows that much of this legislation does not affect Indians alone. Rather, Congress generates a substantial amount of legislation for the general welfare of its citizens, including Indians and Indian nations. It suggests that federal Indian law scholarship, which has focused on legislation specific to Indian nations, has overlooked an important part of the development of federal Indian law and policy. Finally, the Article considers some possible explanations for the higher enactment rate of Indian-related legislation and the implications of this study for congressional policymaking, especially federal Indian law and policy. It confirms the need for further investigation into the different kinds of Indian-related legislation and the complex relationships between Congress and Indians.
This is a highly anticipated and highly recommended paper. Counsel for tribal interests could be well served to consider routing resources away from litigation toward legislative efforts. Consider for one example the Gun Lake Tribe, which secured a legislative fix to the problem created by the Supreme Court’s interpretation of the Quiet Title Act.
Here:
Read the entire issue here (PDF).
Our own Victoria Sweet has published her paper, “Extracting More than Resources: Human Security and Arctic Indigenous Women,” in the Seattle University Law Review. It is available on SSRN.
Here is the abstract:
The circumpolar Arctic region is at the forefront of rapid change, and with change come concerns regarding potential security threats. While extractive industry development can bring economic benefits to an area, there are also human security concerns associated with these development projects. This has been acknowledged by groups that study the impact extractive industry development projects have on different geographic areas. However, most studies have looked at development projects in southern hemisphere countries or countries classified as “developing.” What has not been explored are human security concerns connected with extractive industry development projects within the “developed” countries like the United States. This Article will change that by focusing on the human security concerns connected to extractive industry development in the circumpolar region of the United States, particularly as these projects may threaten the security of indigenous women in the region.
Here is “The Shrinking Sovereign: Tribal Adjudicatory Jurisdiction Over Nonmembers in Civil Cases,” (PDF) published in the Columbia Law Review.
Here is the abstract:
Tribal jurisdiction over nonmembers is limited to two narrow areas: consensual economic relationships between tribes and nonmembers, and nonmember activity that threatens tribal integrity. Even within these two narrow fields, the Supreme Court has stated that tribal adjudicatory power over nonmembers—the authority to decide legal rights of individuals, usually in a trial-like setting—cannot exceed the tribe’s legislative power over nonmembers—the power to regulate nonmember activity through the enactment of legislation and regulation. This raises a question that the Court has acknowledged but never answered: whether a tribe may exercise adjudicatory authority over nonmembers as a result of its legislative power. More simply put, is a tribe’s adjudicatory jurisdiction over nonmembers less than, or equal to, its legislative power?
This Note argues that tribes should have concurrent regulatory and adjudicatory jurisdiction over nonmembers in disputes based on consensual economic relationships, but tribal regulation concerning tribal integrity should be subject to greater federal court oversight. Tribal courts should have presumptive jurisdiction to enforce tribalintegrity regulations; however, proof that the tribal court is unfair or inaccessible to nonmembers should permit federal courts to intervene. By drawing on analogous principles in administrative law, civil procedure, and the law of federal courts, this Note provides a workable solution that is consistent with existing Supreme Court tribal law jurisprudence, that conforms with the normative values shaping jurisdiction in other contexts, and that also respects tribal sovereignty.
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