Jessica Intermill on Federal Statutes of General Applicability

Jessica Intermill has published “Competing Sovereigns: Circuit Courts’ Varied Approaches to Federal Statutes in Indian Country” in the September 2015 issue of the Federal Lawyer. The article details the Sixth Circuit’s varied approaches in Little River Band of Ottawa Indians Tribal Government v. NLRB and NLRB v. Soaring Eagle Casino and Resort (en banc petition materials here).

Two Indian Law Articles in New Issue of Federal Lawyer


Diversely Native
Many federal Indian law professors have experienced some version of the following: We go to a law school to give a workshop on a specific aspect of federal Indian law and get a question along the lines of …


Focus on Indian Law

“Indian Law and Order Commission Proposals Gain Ground” by Troy Eid and Affie Ellis

2015 Indian Law Issue of the Federal Lawyer

The annual Indian Law issue of the Federal Lawyer — which includes an article on Native veterans-active duty servicemembers by Kate Fort and Peter Vicaire — is here:

April 2015

  • Hon. William D. Johnson
    Chief Judge, Umatilla Tribal Court Confederated Tribes of the Umatilla Indian Reservation,
    Pendleton, Oregon


40 Years of U.S. Supreme Court Indian Law Cases: The Justices and How They Voted
The list that follows tells you the Indian law cases the Supreme Court decided in the 40 years of the Indian Law Conference, the citation, whether it favors or is adverse to Indian interests, who wrote the majority opinion, and how the other justices voted.
The Human-Rights Era of Federal Indian Law
What is the future of federal Indian law? The rise of modern Indian nations took place over the past 45 years. During the Indian self-determination era since 1970, hard-fought nation-building advances were achieved within the framework of federal Indian law. It is fitting to commemorate those formative years, especially on the 40th anniversary of the FBA’s Annual Indian Law Conference. We cannot reflect on those years without asking: Where do we go from here?
The Invisible Families
Child Welfare and American Indian Active–Duty Service Members and Veterans
Professor Sarah Deer: MacArthur Fellow
Learn about the life of this MacArthur Fellow.
As Long as the Water Shall Flow
Water has enabled tribes to survive for thousands of years. Indeed, the reverence for water and its blessings continue to support and shape the tribal political, social, economic, and cultural climate in Indian communities throughout the United States. Today, water remains vital for tribal self-sufficiency, economic development, and providing security for present and future generations.
The Precarious Sovereign Immunity of Tribal Business Corporations
With increasing frequency, Indian tribes form wholly owned corporations for economic development purposes. Tribes often assume these entities are immune from suit, but they may be wrong.
Suffer No Tyranny
How State-Tribal Relations Might Evolve in the Light of the Supreme Court’s Michigan v. Bay Mills Indian CommunityReluctance to Referee Intergovernmental Disputes
For Native American Attorneys, Groundbreaking NNABA Study Reveals Devastating Lack of Inclusion in the Legal Profession at Large
To raise the visibility of Native American attorneys in the legal profession at large, to effectuate lasting reforms in the legal community, and to help build a better pipeline to law school, the National Native American Bar Association (NNABA) conducted the first-of-its-kind study of Native American attorneys.

Kate Fort & Peter Vicaire on Child Welfare and American Indian Active Duty Servicemembers and Veterans

Kathryn E. Fort and Peter S. Vicaire have posted “The Invisible Families: Child Welfare and American Indian Active Duty Servicemembers and Veterans,” forthcoming in the Federal Lawyer.

The abstract:

Child welfare issues as they involve Native military families are rarely discussed. In the recent case of Adoptive Couple v. Baby Girl, the Supreme Court erased them entirely. The federal government, tribes and states can address issues affecting Native military families in a number of ways discussed in this article, including:

• Kinship placement in contested adoptions put on hold due to deployment;

• Ensuring Memorandums of Understanding between military bases and states include reference to the Indian Child Welfare Act (ICWA);

• Identifying and educating attorneys — including Judge Advocates — on both ICWA and the Servicemembers Civil Relief Act;

• Training Veteran Treatment Court judges on issues specific to Native veterans;

• Modeling specialized state Indian Child Welfare Act dockets on Veteran Treatment Courts;

• Opening conversations between child welfare courts and veterans courts, and assigning one judge per family;

• Encouraging the development of tribal court veterans treatment dockets and engaging with the Veterans Administration (VA) through Veteran Justice Outreach Specialists (VJOs)

Federal Law 2014 Indian Law Issue


Judicial Profiles of Tribal Judges (!)

And excellent Indian law articles:

Sovereignty Gravitas — Patrice H. Kunesh
The experience of tribal sovereignty and the manner in which it is exercised, the gravitas of sovereignty, is the best indicator of the future of Indian Country. While all tribes have the authority to govern, many may not have realized the gravitas of that sovereignty. Tribes can enhance gravitas and provide prosperity using a four pronged approach: a direct and personal relationship between the tribe and its members or citizens; more democracy and better data; transparent fiscal management; and targeted social welfare assistance programs.
Understanding the Supreme Court’s Decision in Adoptive Couple v. Baby Girl — Jack Trope
The U.S. Supreme Court decision in Adoptive Couple v. Baby Girl addressed some fundamental questions about the rights of birth parents and families in the context of the attempted adoption of an Indian child by a non-native family. Only the second Indian Child Welfare Act (ICWA) case ever decided by the Court, the case will affect interpretations of the ICWA by federal and state courts for many years. As demonstrated by the decision on remand, there is a great potential for the case to be misinterpreted by lower courts and careful analysis of the Court’s opinion is vitally important.
Indigenous Energy Issues on an International Grid — Tracey A. LeBeau
Indigenous interests in energy and natural resources include a discussion on the a wide range of social and economic statistics. This article takes a step back to ask some leading questions about where there may be nexus points, or gaps, for community leaders, policy makers, and business advisors who work in the field to consider
Branding the Band: Protecting Tribal Identities Through Trademark Law — Paula M. Yost, Ian R. Barker, and Sara Dutschke Setshwaelo
One day, mail service to a California Indian tribe suddenly ceased. The tribe ultimately uncovered a campaign of sovereign identity theft that serves as an eye-opening object lesson in the importance of protecting tribal trademarks.
Nothing Nefarious: The Federal Legal and Historical Predicate for Tribal Sovereign Lending — Jennifer H. Weddle
Indian tribes are exercising their sovereignty. They continue to provide for their citizens, using the resources available to them to subsist and build their economies. This is nothing new, yet, a controversy exists because some do not like one particular mechanism of tribes’ sovereign action—in this case making short-term, small-denomination loans to consumers around the country via the Internet. Some do not understand that tribal sovereigns are capable of good governance, that many tribes have in place robust civil regulatory consumer-protection regimes, or that tribes are able to provie quality service to treat consumers fairly and simultaneously generate revenues for the tribe.
The HEARTH Act: Transforming Tribal Land Development — Bryan Newland
President Barack Obama signed the Helping Expedite and Advance Responsible Tribal Homeownership (HEARTH) Act into law on July 30, 2012. Although it was a relatively straightforward piece of legislation, the act has the potential to transform the use of tribal lands across Indian Country. The historical development of U.S. policies governing leasing of Indian lands, as well as the longstanding requirement that the Secretary of the Interior approve leases of Indian lands, provide the proper context to discuss the HEARTH Act, its requirements, and the manner in which it has changed federal policies affecting Indian lands. However, two unresolved questions have arisen as a result of the HEARTH Act’s passage.


Federal Lawyer: 2013 Indian Law Issue


Recognizing the Importance of Indian Law on State Bar Examinations
In many areas of federal Indian law, practitioners must understand substantive principles coupled with the unique relationship between tribal nations and the United States at the federal and state level of government.
Full Story

The Indian Gaming Regulatory Act at 25: Successes,Shortcomings, and Dilemmas
This article explains the political context at the time the IGRA was enacted, the pros and the cons of IGRA from a tribal perspective, the major unresolved legal issues IGRA has generated, and the potential collateral damages IGRA has created for tribal sovereignty.

Focus On: Understanding Federal Rule of Civil Procedure 19 and Its Application in the Sovereign Immunity Cases
The familiar concept that federally recognized Indian tribes are protected by sovereign immunity leads to interesting and confusing results in cases interpreting Rule 19 of the Federal Rules of Civil Procedure—Required Joinder of Parties.

Apocalypse Now: The Unrelenting Assault on Morton v. Mancari
It has become axiomatic within federal Indian law circles that if possible, tribal cases should not be taken to the U.S. Supreme Court. Of the Court’s last 30 tribally related decisions, tribal interests have only prevailed six times. Many of the losses were by wide margins and overturned significant and long standing principles of federal Indian law.

Freeing Indian Energy Development from the Grips of Cotton: Advancing Energy Independence for Tribal Nations
A substantial amount of untapped energy resources are located within Indian country in the United States. Energy production from tribal lands equals 10 percent of the total federal onshore production of energy minerals. Indian-owned energy resources are still largely undeveloped: 1.81 million acres are being explored or in production, but about 15 million more acres of energy resources are undeveloped.


FBA’s Federal Lawyer Publishes Annual Indian Law Issue


Photos by the incomparable Lawrence Baca.

The Potential Impact of the Growing Mobile Society on Tribal Identity (Venus McGhee Prince)

When most Americans think of tribes in this country, they don’t think of modern Indians who may live next door and may look and act much like them, at least from a first glance. Yet the growing technological and physical mobility of modern society may be producing these fundamental changes in tribal identity. This article explores the challenges that face tribes as their identities are reshaped in the modern world.
In Memoriam: David Getches: A Tribute to a Leader and a Scholar (Matthew L.M. Fletcher and Kristen A. Carpenter)
Indian country lost a great champion when David H. Getches walked on to the next world on July 5, 2011.
Garden of Truth (Sarah Deer)
Sex trafficking is often thought of as a crime that originates overseas. This article explores the ugly reality of commercial sexual exploitation in the lives of American Indian women and girls, right here in the United States.
The U.S. Supreme Court’s decision inCalifornia v. Cabazon Band of Mission Indiansmay be the most momentous decision in federal Indian law in the last 50 years.
Also, FBA Indian Law Section President Elizabeth Ann Kronk’s “At Sidebar” Message, “United States v. Jicarilla Apache Nation: Its Importance and Potential Future Ramifications” is here. Apparently, she doesn’t get a photo.

Fletcher on Cabazon Band in the Federal Lawyer

I’ve posted my short paper, “California v. Cabazon Band: A Quarter-Century of Complex, Litigious Self-Determination,” in this month’s Federal Lawyer on SSRN.

Here is the abstract:

The Supreme Court’s decision in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), may be the most momentous decision in federal Indian law in the last 50 years. The decision provided a federal common law basis for Indian tribes to engage in high stakes bingo and other gaming activities without state regulation, even in so-called Public Law 280 states like California that have criminal jurisdiction inside of Indian country. Cabazon Band provoked Congress to finally codify a regulatory scheme for Indian gaming, including an enactment that authorized under specific conditions Vegas-style casino gaming, in the Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2701 et seq. Indian gaming, as a direct result of Cabazon Band, now has a market greater than $26 billion a year nationally.

Federal Lawyer Articles on Indian Law

The March/April 2008 issue of the Federal Lawyer featured several articles on Indian law.

Zeke Fletcher on the legacy of Martinez, Wheeler, and Oliphant: trappedinthespringof1978

Casey Douma on the Indian Civil Rights Act: 40thanniversaryoficra

Mike McBride and Susan Huntsman on tribal labor relations: organizedlaborstrategiesforindiangaming

Goodman and Maxfield on the NIGC’s gaming management contracting: isthatyourfinalanswergoodmanmaxfield

Matthew Fletcher on the Supreme Court and the rule of law: supremecourtandtheruleoflaw

Forthcoming Federal Lawyer Article: “The Supreme Court and the Rule of Law: Indian Law Case Studies”

It looks like I’ll have a short paper in the Federal Lawyer in the March/April 2008 issue they publish in conjunction with the FBA Indian Law Conference. This one is called “The Supreme Court and the Rule of Law: Indian Law Case Studies” and is based in part on my forthcoming Hastings Law Journal article, “The Supreme Court’s Indian Problem” (well, it’s sort of like outtakes from that article).

Here’s the abstract:

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