Here.
In pdf form:
Scholarship
New Student Scholarship on the Tribal Law and Order Act
Seth J. Fortin has published “The Two-Tiered Program of the Tribal Law and Order Act” (PDF) in the UCLA Law Review Discourse.
Here is the abstract:
The Tribal Law and Order Act of 2010 was intended to significantly expand the sentencing powers of tribal courts, raising the maximum sentence for a given offense from one year to three. But the Act requires courts that would take advantage of these new powers to provide significant procedural protections to criminal defendants, while failing to provide the funding most tribal courts would need to make those protections a reality. Moreover, the Act leaves vague and open to interpretation the precise form those protections should take, which is an open invitation to federal courts to scrutinize tribal court procedure; this, in turn, may put tribal courts in the position of choosing between longer sentences and retaining their traditional character. These two obstacles—lack of funding, and the danger to tribal courts’ unique character— mean that the Act is likely to sort tribes into two “tiers”: wealthier or more assimilated tribes will be able to take advantage of the longer sentences, while tribes that cannot afford (whether financially or culturally) to change their practices will be left unable to adequately sentence serious offenders. And because of the way the Act resolves a longstanding ambiguity in Indian law, some tribes in the latter group may be left with less sentencing power than they had previously.
New Paper on the Availability of Tribal Law
Bonnie J. Shucha posted her paper, “Whatever Tribal Precedent There May Be’: The (Un)Availability of Tribal Law” on SSRN. Here is the abstract:
This article explores the costs and benefits of publishing tribal law. Part I analyzes why tribal law is not more widely available; part II illustrates the benefits of making tribal law more accessible, and part III describes publication options for tribes. An appendix lists currently available tribal law collections.
New Scholarship on Karuk Tribe of California v. U.S. Forest Service
The Boston College Environmental Affairs Law Review has published “Endangered Precedent: Interpreting Agency Action and the Duty to Consult Under Section 7 of the ESA in Light of Karuk.”
Here is the abstract:
Following the designation of the West Coast coho salmon as a threatened species under the Endangered Species Act, and the ensuing designation of the Klamath River system in the Pacific Northwest as critical habitat for the species, the indigenous Karuk Tribe challenged the U.S. Forest Service’s mining permit approval practices in Karuk Tribe of California v. U.S. Forest Service. Under Section 7 of the ESA, an agency must consult with one of two outside resources in instances where the agency’s actions “may affect” an endangered population. In reversing the district court’s denial of summary judgment on the Tribe’s ESA claim, the Ninth Circuit held that the Forest Service’s approval of mining applications without consultation constituted discretionary agency action that may affect the region’s coho salmon population. This Comment argues that this broad interpretation of agency action accurately reflects Section 7’s requirements. Furthermore, because this standard is clear, courts should apply this broad interpretation in future cases to avoid inconsistency and protect the environment in accord with congressional intent.
Indigenous Law Journal Call for Submissions
New MPP Thesis on Health Insurance Coverage and American Indian Access to Health Care
Abstract:
This study uses Medical Expenditure Panel Survey data from 2001 to 2010 to measure the differences of utilization, access, and health disparities between whites and the combined group of American Indians and Alaska Natives. Comparing the two groups based on their insurance coverage type – private, public, and uninsured – the study finds that insurance coverage increases health care utilization and access and that this access has the potential to reduce the gap in health disparities between the two sub-populations. Additionally, the study illustrates that insurance status is not the sole predictor of health care access and utilization for American Indians and Alaska Natives. The results show there are still significant access differences among those with private and public insurance.
Outstanding New Paper on Federal Trust Land Acquisitions by Frank Pommersheim
Frank Pommersheim has published an important new paper titled “Land Into Trust: An Inquiry into Law, Policy, and History” in the Idaho Law Review. A PDF is here:
Here is the introduction:
The land-into-trust policy of the Indian Reorganization Act (“IRA”) is an express legislative attempt to undo, or at least ameliorate, the massive loss of Indian land that resulted from the federal government’s allotment policy of the late nineteenth *520 and early twentieth centuries. The allotment policy occasioned a severe reduction in the national Indian land estate without any benefit to the affected Indians and tribes including the vaunted goals of assimilation and the reduction of poverty in Indian country. The extensive loss of land produced much economic hardship, cultural strain, and erosion of tribal governing authority.
The subsequent attempt of IRA law and policy to reverse this process of severe land loss raises significant questions about the ability of law, and Indian policy in particular, to repair history without creating new conflict that reprises, even deepens, old animosities. This article will survey and analyze this process from both a policy and empirical point of view. In addition, this piece will review the nitty-gritty administrative procedures for putting land into trust, the various procedural challenges to this process, as well as substantive legal challenges to the validity of the land-into-trust portions of the IRA, especially in the state of South Dakota. Finally, the article will tally the empirical results to date, and conclude by examining non-litigation strategies and solutions with an eye on their ability to meet the needs of all concerned.
HIGHLY recommended.
Ian Mosby’s Article: “Nutrition Research and Human Biomedical Experimentation in Aboriginal Communities and Residential Schools, 1942–1952”
Ian Mosby’s article, the subject of an earlier post here, “Nutrition Research and Human Biomedical Experimentation in Aboriginal Communities and Residential Schools, 1942–1952“, published in Histoire sociale/Social history, is available for a limited time for free at the MUSE website (PDF here).
An absolute must read.
Here is the abstract:
Between 1942 and 1952, some of Canada’s leading nutrition experts, in cooperation with various federal departments, conducted an unprecedented series of nutritional studies of Aboriginal communities and residential schools. The most ambitious and perhaps best known of these was the 1947–1948 James Bay Survey of the Attawapiskat and Rupert’s House Cree First Nations. Less well known were two separate long-term studies that went so far as to include controlled experiments conducted, apparently without the subjects’ informed consent or knowledge, on malnourished Aboriginal populations in Northern Manitoba and, later, in six Indian residential schools. This article explores these studies and experiments, in part to provide a narrative record of a largely unexamined episode of exploitation and neglect by the Canadian government. At the same time, it situates these studies within the context of broader federal policies governing the lives of Aboriginal peoples, a shifting Canadian consensus concerning the science of nutrition, and changing attitudes towards the ethics of biomedical experimentation on human beings during a period that encompassed, among other things, the establishment of the Nuremberg Code of experimental research ethics.
Book Announcement: “Mastering American Indian Law” by Dean Leeds and Professor EagleWoman
From Carolina Academic Press comes Mastering American Indian Law by Angelique Townsend EagleWoman and Stacy L. Leeds.
The description:
Mastering American Indian Law is a text designed to provide readers with an overview of the field. By framing the important eras of U.S. Indian policy in the Introductory Chapter, the text flows through historical up to contemporary developments in American Indian Law. This book will serve as a useful supplement to classroom instruction covering tribal law, federal Indian law and tribal-state relations. In ten chapters, the book has full discussions of a wide range of topics, such as: Chapter 2 – American Indian Property Law; Chapter 3 – Criminal Jurisdiction in Indian Country; Chapter 4 – Tribal Government, Civil Jurisdiction and Regulation; Chapter 8 – Tribal-State Relations; and Chapter 9 – Sacred Sites and Cultural Property Protection. Throughout the text, explanations of the relevant interaction between tribal governments, the federal government and state governments are included in the various subject areas. In Chapter 10 – International Indigenous Issues and Tribal Nations, the significant evolution of collective rights in international documents is focused upon as these documents may be relevant for tribal governments in relations with the United States. For Indian law courses, law school seminars on topics in American Indian Law, undergraduate and graduate level American Indian Studies classes, and those interested in the field, this book will provide an easy-to-read text meant to guide the reader through the historical to the contemporary on the major aspects of American Indian law and policy.
A draft of chapter three, Criminal Jurisdiction in Indian Country, is available on SSRN.
New Study on Impact of Public Law 280 on Umatilla Reservation (+ 160 Other Reservations)
Sarah N. Cline’s study, “Sovereignty Under Arrest? Public Law 280 and its Discontents” is available here (PDF).
The abstract:
Law enforcement in Indian Country has been characterized as a “maze of injustice”—one in which offenders too easily escape and victims are too easily lost (Amnesty International, 2007). Tribal, state, and federal governments have recently sought to amend this through the passage of the Tribal Law and Order Act (TLOA) in 2010 and the expansion of cross-deputization agreements. Positioning itself amid these developments, this study seeks to determine the administrative impact of Public Law 280 (P.L. 280), which creates a concurrent jurisdictional regime between states and tribes. Taking a mixed-methodological approach, the law’s effect on the sovereignty and resource capacity of tribal justice systems is first analyzed using existing data for 162 American Indian reservations. Through a series of logistic regressions, hypotheses are tested to determine whether a statistically significant difference emerges between policy treatments under P.L. 280. This quantitative analysis is then grounded in a case study of the Confederated Tribes of the Umatilla Indian Reservation, who are unique for their 1981 retrocession of criminal jurisdiction in the mandatory P.L. 280 state of Oregon. Both content analysis of archival records and semi-structured interviews with tribal, state, and federal public officials shed light on experiences of the criminal justice system before, during, and after P.L. 280. This research contributes to the overarching objectives of TLOA, which seek to locate best practices and administrative models in reducing crime and victimization on reservations.
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