Robert Anderson on the Katie John Litigation

Robert T. Anderson has published “The Katie John Litigation: A Continuing Search for Alaska Native Fishing Rights After ANCSA” in the Arizona State Law Journal (PDF).

Highly recommended!!!!

New Student Scholarship on Indian Country Cross Deps

Here is “Bridging the Jurisdictional Void: Cross-Deputization Agreements in Indian Country,” forthcoming in the Arizona State Law Journal.

The abstract:

Comment examines cross-deputization agreements in Indian Country, focusing on the relationship between tribes and state and local governments and the impact cross-deputization agreements have on enforcing criminal law in Indian Country. Section I examines the recent rise and evolution in tribal law enforcement powers. Section II briefly addresses the current ability of tribal police to enforce laws off of tribal land and the ability of state police to enforce laws on tribal land. Finally, Section III examines the benefits and issues involved with cross deputization agreements.

Patty Ferguson-Bohnee on Indian Voting Rights in Arizona

Patty Ferguson-Bohnee has posted “The History of Indian Voting Rights in Arizona: Overcoming Decades of Voter Suppression,” which she published in the Arizona State Law Journal. Here is the abstract:

Native Americans “have experienced a long history of disenfranchisement as a matter of law and of practice.” This comes from a complicated and contradictory history of laws and policy that has recognized tribes as separate sovereigns, reduced tribal status to that of domestic dependent nations, sought to remove, relocate, or assimilate tribal citizens, terminated numerous indigenous nations, and has now moved to a policy of tribal self-government. Unfortunately, the right to vote for Arizona’s first people has only recently been achieved, and there are continuing threats to the electoral franchise.

Voter suppression has been used to discourage or prevent Indian people from voting in Arizona. Voter qualifications such as literacy tests were used to prevent Indians from participating in elections for approximately fifty years. Once Native Americans started voting, redistricting and vote dilution were used to reduce the effectiveness of the Native vote.

This article will review the history of Indian voting rights in Arizona. The author begins by reviewing the history of Native American voting rights and the history of voting discrimination against Native Americans in Arizona. The Voting Rights Act turned the corner for Native people to participate in the state and federal election processes. The article then discusses the current challenges faced by Native American voters and specifically discuss the voter ID law passed in 2004. The voter ID law is a roadblock that impedes full participation by all Arizona Indians. The last part of the article focuses on strategies to protect Indian voting rights. Notwithstanding the Supreme Court’s invalidation of the Section 5 coverage formula in Shelby County, tribes should consider proactive measures to ensure that tribal citizens can participate in elections.

Highly recommended.

Two Indian Law Articles in Newest Volume of Arizona State Law Journal

Here:

Reid Peyton Chambers’ Canby Lecture, “REFLECTIONS ON THE CHANGES IN INDIAN LAW, FEDERAL INDIAN POLICIES AND CONDITIONS ON INDIAN RESERVATIONS SINCE THE LATE 1960s,” is available in pdf here.

And Matthew L.M. Fletcher’s “A UNIFYING THEORY OF TRIBAL CIVIL JURISDICTION” is available in pdf here and here.

Fletcher: “A Unifying Theory of Tribal Civil Jurisdiction”

Please see “A Unifying Theory of Tribal Civil Jurisdiction” on SSRN. Here is the abstract:

This paper addresses one of the most dynamic and useful areas of American Indian law. I situate my arguments between two competing and intractable theories dominating the field – the consent theory, which limits tribal jurisdiction to those who expressly consent to tribal governance; and the territory theory, which expands tribal jurisdiction to anyone in Indian country. The consent theory unnecessarily undercuts tribal authority on Indian lands, assuming without evidence that nonconsenters will not receive a fair shake in tribal forums. Meanwhile, the territory theory unnecessarily exposes nonconsenters to Indian authority on non-Indian owned land, where tribal power is weakest and least justified.

I propose a simpler solution that unites the two theories and brings realism to the discussion. Where activities occur on Indian lands, tribal jurisdiction should be presumed subject to a simple fairness test any court could conduct, but that is currently (and ironically) barred by the Supreme Court. The reality is that tribal governments are already successfully exercising this power, but the common law is lax in its recognition of tribal governance, generating unpredictability and confusion.

Substantive comments welcome.

Bill Rice on the Future of Indian Gaming

Bill Rice has posted his fine paper, Some Thoughts on the Future of Indian Gaming, published in the Arizona State University Law Journal, Vol. 42, No. 1, p. 219, Spring 2010. Here is the abstract:

In surveying the historical development of Indian gaming, it is apparent that several pre-IGRA legal principles had a significant impact upon the development of the Indian Gaming Regulatory Act (IGRA) and the relevant caselaw. Since the enactment of the IGRA in 1988, litigation in the federal appelllate courts, has resulted in sufficient decisional law to be instructive in its interpretation, and to prognosticate the future to some degree. In addition to historical and developmental issues, primary areas of litigation have included: 1. Management contracts, and issues relating to their approval, enforcement, and cancellation. 2. Game classification issues in class II (bingo and related games) and class III Indian gaming (generally thought of as “casino” games). 3. Tribal-State compacting regarding class III Indian gaming establishments, and the interplay between the compacting process and the game classification process. 4. The reacquisition of land by Indian tribes, and the eligibility of such lands for gaming purposes pursuant to IGRA.

Given an understanding of the issues raised by the case law in these areas, and related litigation, additional issues may be identified which may be litigated or otherwise determined in the future. This enables one to identify certain policy issues which should be considered by the National Indian Gaming Commission, Congress, the Tribes, and States in the future.

New Paper by Alex Skibine: “Indian Gaming and Cooperative Federalism”

Alex Skibine has posted his paper, “Indian Gaming and Cooperative Federalism,” forthcoming in the Arizona State Law Journal, on SSRN (also available on BEPress).

Here is the abstract:

In this article I evaluate the role of the federal Indian trust relationship in integrating, without assimilating, Indian tribes in our federalist system. I explore these issues through the lens of Indian gaming and implementation of the Indian Gaming Regulatory Act.

Kevin Washburn — First Canby Lecture at ASU

Kevin Washburn posted his lecture, “American Indians, Crime, and the Law: Five Years of Scholarship in Criminal Justice in Indian Country,” on SSRN. Here is the abstract:

This essay is a lightly-edited and footnoted draft of the inaugural Canby lecture presented by Professor Washburn as the inaugural William C. Canby, Jr., Scholar in Residence at the Sandra Day O’Connor College of Law at Arizona State University in 2008. It briefly praises Judge Canby and his influences on the author and then presents some of the highlights of Professor Washburn’s critical commentary on Indian country criminal justice, which reflected Professor Washburn’s most important work in the first five years of his career. It also briefly summarizes legislation recently introduced in the United States Congress that is intended to respond to several of Professor Washburn’s concerns.