William Baude, a clerk for Judge McConnell of the CA10, has just posted “The Judgment Power” on SSRN, forthcoming in the Georgetown Law Journal.
Here’s the abstract:
Supreme Court
The Two Andrew Jacksons: Old Hickory or the American Hitler?
Article on the Treaty of Waitangi
Mark J. Bennett & Nicole Roughan have posted “Rebus Sic Stantibus and the Treaty of Waitangi” on SSRN. This is a very interesting paper, a response to the argument put forth by renowned legal thinker Jeremy Waldron that the doctrine of rebus sic stantibus could be applied to the Treaty of Waitangi to effectively abrogate it. In short, this argument goes, the passage of time and radically changed political realities could serve to render the Treaty unenforceable.
This, I think, is a similar argument to what the Vermont Supreme Court made in State v. Elliott and what the U.S. Supreme Court did in Sherrill v. Oneida Indian Nation — where the passage of time and changed political circumstances appear to render Indian treaty rights nugatory. In short, it’s troubling.
From the abstract:
Possible Future Circuit Split re: Bald & Golden Eagles Protection Act
An interesting question is brewing in the Ninth and Tenth Circuits — whether the administration of the National Eagle Repository (created by the USFWS as a means to create an exception to the Bald and Golden Eagles Protection Act for American Indians) is unconstitutional as applied to American Indians.
Plains Commerce Bank v. Long Family Land & Cattle Co. Materials — Update
Plains Commerce Bank’s cert petn reply brief is here: Reply Brief
All other materials are at our previous post.
Carla Pratt on Tribal Miscegenation Laws
Carla Pratt (Penn State) has published “Loving Indian Style: Maintaining Racial Caste and Tribal Sovereignty Through Sexual Assimilation” in the Wisconsin Law Review as part of the Review’s symposium on Loving v. Virginia.
Here’s the intro:
Plains Commerce Bank v. Long Family Land & Cattle Co. Materials
Plains Commerce Bank recently filed a cert petition in this matter, which involves a tribal court judgment against Plains Commerce. The bank argues the tribal court didn’t have jurisdiction over it, despite waiving that argument before the tribal court.
Here are the materials:
Case Note on Trail Smelter (Pakootas v. Teck Camino)
The Harvard Environmental Law Review published a case note on the Trail Smelter case, “Pakootas v. Teck Cominco Metals, Ltd.“ The Supreme Court will decide shortly whether or not the hear the case, though the Solicitor General has argued in favor of a denial of cert. The case involves water pollution of tribal waters at Colville by a Canadian smelter.
Republic of Philippines v. Pimentel — Indian Law Issues?
Well, not really, but this case, which the Supreme Court granted cert. on Dec. 3, involves the application of the necessary and indispensable party doctrine of Rule 19 to sovereigns (especially sovereigns raising sovereign immunity). Interestingly, a large portion (even perhaps a majority) of the cases cited in the cert. petitions and opps involve the application of Rule 19 to tribal sovereigns.
From SCOTUSBlog:
Stanley Fish on Religious Freedom
Stanley Fish, as always, has something interesting to say about the law. In this post (“Monkey Business“) on his NYT’s blog, “Think Again,” Fish describes a case in federal court (S.D. N.Y.) about a claim that the importation of “bushmeat” for religious purposes that otherwise would violate the Convention on International Trade of Endangered Species.
Turtle Talk 
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