Indian Law Reviews
The William Mitchell Law Review is a quarterly, student-edited journal. Founded in 1974, the Law Review publishes timely articles of regional, national and international interest for legal practitioners, scholars, and lawmakers. Judges throughout the United States regularly cite the Law Review in their opinions. Academic journals, textbooks, and treatises frequently cite the Law Review as well. It can be found in nearly all U.S. law school libraries and online.
- When a Tribal Entity Becomes a Nation: The Role of Politics in the Shifting Federal Recognition Regulations, by Lorinda Riley, delves into the application of politics on the Department of the Interior’s administrative actions on federal recognition and also explores how each presidential administration has both shaped and bent the federal recognition regulations to fulfill its political priorities.
- Owning Red: A Theory of Indian (Cultural) Appropriation, by Angela Riley and Kristen A. Carpenter, situates intangible cultural property claims in a larger history of the legal dispossession of Indian property - a phenomenon we call “Indian appropriation” and then evaluates these claims vis à vis prevailing legal doctrine, and offers a normative view of solutions, both legal and extralegal.
- Water Rights, Water Quality, and Regulatory Jurisdiction in Indian Country, by Robert T. Anderson, reviews the nature of Indian water rights — both on and off reservations — and the use of tribal sovereignty to protect those rights in terms of quantity and quality.
- Guarding Against Exploitation: Protecting Indigenous Knowledge in the Age of Climate Change, by Joseph Brewer II and Elizabeth Ann Kronk Warner, addresses concerns associated with the stewarding of such traditional knowledge, in hopes of providing legal structure to the conversation and examines the use of tribal law to address the protection of traditional knowledge in-depth and provide a discussion of how some tribes are already utilizing tribal law to accomplish such goals.
- Consultation or Consent: The United States Duty to Confer with American Indian Governments, by Robert J. Miller, explores the current international law movement to require nation/states to consult with Indigenous peoples before undertaking actions that impact Indigenous nations and communities.
- Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark, by Bethany Berger, juxtaposes the history of these decisions by showing the distinctive constitutional and political status of Native peoples, this history makes clear the unconstitutionality of efforts to limit birthright citizenship and the consistency of Elk with the egalitarian ideals of the Fourteenth Amendment.
- Plenary Power, Political Questions, and Sovereignty in Indian Affairs, by Michalyn Steele, proposes that rather than facing a rigged coin toss in the courts, tribes should be able to avail themselves of the political question and plenary power doctrines to have Congress rather than the courts decide questions of inherent tribal authority. Under current precedent, the Court has aggrandized its own power in Indian affairs through the theory of implicit divestiture, which holds that the Court may find tribes divested of inherent powers even without Congressional action.
- Justice for All: An Indigenous Community-Based Approach to Restorative Justice in Alaska, by Brian Jarrett and Polly E. Hyslop, reviews the comparative successes of two restorative justice programs in Alaska, namely, the Upper Tanana Wellness Program and the Circle Peacemaking Program in Kake, Alaska. In an analysis of the two case studies, the authors develop nine principles useful to those interested in developing restorative-justice programs and recommend an Indigenous community-based approach consistent with practice in the field of Dispute Systems Design.
- Federal Reserved Water Rights as a Rule of Law, by Michael C. Blumm, maintains that, although Congress certainly has the power either to affirm or reject water rights for federal lands, the idea that water rights may be lost by mere congressional discussion of the doctrine followed by a decision not to take action cannot be interpreted as a rejection of a legal doctrine over a century old. There is no support for interpreting congressional inaction to reverse a long settled legal doctrine like federal reserved water rights — and the costs imposed on federal interests, especially in terms of instream flows, would be significant.
- Everything Old is New Again: Enforcing Tribal Treaty Provisions to Protect Climate Change Threatened Resources, by Elizabeth Ann Kronk Warner, begins by looking at the treaty language of specific tribes, which have expressed interest in shielding treaty-protected resources, and also methodologies of interpreting treaties and considers how such treaty language might be used in a legal claim against the United States, speculating as to uses under both domestic and international law.
- Personal Jurisdiction and Tribal Courts after Walden and Bauman: The Inadvertent Impact of Supreme Court Jurisdictional Decisions on Indian Country, by Grant Christensen, takes the Supreme Court’s 2014 decisions and discusses their potential application to tribal courts and their use within Indian Country.
- Indian Treaties: A Bibliography, by Beth DiFelice, describes sources for research into treaties between the U.S. government and Indian tribes, focusing on primary sources. The sources are preceded by an overview of the treaty process and the termination of the government’s power to enter into treaties with Indian nations.
- Water Rights, Water Quality, and Regulatory Jurisdiction in Indian Country, by Robert T. Anderson, reviews the nature of Indian water rights—both on and off reservations—and the use of tribal sovereignty to protect those rights in terms of quantity and quality.
- 40 Years of U.S. Supreme Court Indian Law Cases: The Justices and How They Voted, by By Lawrence R. Baca, tells the reeader 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, by By Walter Echo-Hawk, addresses the law reform task that sits before us in the 21st century. It advances several propositions, from contending that Indian self-determination has expanded as far as it can grow under the existing legal framework. Indian self-determination is the national federal policy for Indian affairs to promote tribal self-government and turn control of programs that affect Indian tribes over to the tribes themselves.
- The Invisible Families, by by By Kathryn E. Fort and Peter S. Vicaire, posits that are many troubling aspects to the opinion in Baby Girl, but what this article seeks to illuminate are the pieces left out of the opinion: the military service of the Native father, and the intersection of child welfare, ICWA, and Native military service.
- Enhanced Sentencing in Tribal Courts: Lessons Learned From Tribes, by Christine Folsom-Smith, is designed to provide a brief overview of the changes under TLOA regarding enhanced sentencing authority, offer considerations for correctional/detention and community corrections programming related to enhanced sentences, and provide tribes with a checklist to help guide discussions around implementation of enhanced sentencing authority.
- A Unifying Theory of Tribal Civil Jurisdiction, by Matthew L. M. Fletcher, addresses one of the most dynamic and useful areas of American Indian law 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.
- Criminal Justice in Indian Country, by Sarah Deer, discusses how VAWA 2013's partial re-authorization of tribal criminal jurisdiction over non-Indians recognizes that the inherent right of tribal nations includes criminal jurisdiction over non-Indian defendants accused of domestic violence, and how protecting Native women-will likely become even more important as tribal leaders and jurists consider the future of tribal self-determination and seek to realize the full potential of the changes created by VAWA 2013.
- Tribal Justice Systems, by Matthew L. M. Fletcher, surveys several tribal justice systems in an effort to identify commonalities and complexities among the hundreds of tribal justice systems in the United States.
- Muscogee Constitutional Jurisprudence: Vhakv Em Pvtakv (The Carpet Under The Law), by Sarah Deer and Cecelia Knapp, explores factors that have helped the Mvskoke people create, nurture, and sustain a constitutional government under hostile circumstances for centuries, and focuses on the history and structure of the constitutional government of the Muscogee (Creek) Nation of Oklahoma.
- Oneida Tribe of Indians of Wisconsin: Food Sovereignty, Safe Water, and Tribal Law, by Rachel M. Vesely, analyzes the strengths of the Oneida Tribe of Indians of Wisconsin approach to preserving water quality and fishing habitats.
- “Whatever Tribal Precedent There May Be”: The (UN)availability of Tribal Law, by Bonnie Shucha, 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.
The American Indian Law Journal (AILJ) is an academic collaboration among students, faculty, and practitioners of the Center for Indian Law and Policy at Seattle University School of Law.
The Federal Lawyer, published by the Federal Bar Association, is the only magazine written and edited for lawyers who practice in federal courts or have an interest in federal law as well as judges who sit on the federal bench. In honor of the Federal Bar Association’s 37th Annual Indian Law Conference, has published their annual Indian Law Issue.
American Indian Law Review is a specialized law review devoted exclusively to Indian law, and provides a forum for scholarly writing in the areas of the law that particularly affect American Indians.
The Tribal Law Journal provides native peoples, practitioners, and law students an opportunity to contribute their work to the discussion relating to internal indigenous law. The contributions include, but are not limited to, tribal court case comments, reflections on tribal systems, the development of tribal law, the value of tribal law, interviews and teachings.
The Alaska Law Review provides an annual year-in-review of significant court decisions and legislative changes as well as scholarly articles in many areas such as natural resources law, environmental law, land use planning, economic development, and Native American rights.
The Washington Law Review posted these articles in their December 2012 Issue:
- Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280, by Robert T. Anderson, canvasses the jurisdictional rules applicable in American Indian tribal territories—“Indian country.” The focus is on a federal law passed in the 1950s, which granted some states a measure of jurisdiction over Indian country without tribal consent. The law is an aberration. Since the adoption of the Constitution, federal law preempted state authority over Indians in their territory. The federal law permitting some state jurisdiction, Public Law 280, is a relic of a policy repudiated by every President and Congress since 1970. States have authority to surrender, or retrocede, the authority granted by Public Law 280, but Indian tribal governments should be allowed to determine whether and when state jurisdiction should be limited or removed.
- Inextricably Political: Race, Membership, and Tribal Sovereignty, by Sarah Krakoff, traces the evolution of tribes from pre-contact independent sovereigns to their current status as “federally recognized tribes.” This history reveals that the federal government’s objective of minimizing the tribal land base entailed a racial logic that was reflected in decisions about when and how to recognize tribal status. The logic was that of elimination: Indian people had to disappear in order to free territory for non-Indian settlement. The Article then examines two very distinct tribal places, the Colorado River Indian Tribes’ (CRIT) reservation and the former Dakota (Sioux) Nation of the Great Plains.
- Indigenous Peoples and Epistemic Injustice: Science, Ethics, and Human Rights, by Rebecca Tsosie, explores the use of science as a tool of public policy and examines how science policy impacts indigenous peoples in the areas of environmental protection, public health, and repatriation. Professor Tsosie draws on Miranda Fricker’s account of “epistemic injustice” to show how indigenous peoples have been harmed by the domestic legal system and the policies that guide the implementation of the law in those three arenas. Professor Tsosie argues that the theme of “discovery,” which is pivotal to scientific inquiry, has governed the violation of indigenous peoples’ human rights since the colonial era.
- Fleeing East from Indian Country: State v. Eriksen and Tribal Inherent Sovereign Authority to Continue Cross-Jurisdictional Fresh Pursuit, by Kevin Naud, Jr., In State v. Eriksen, the Washington State Supreme Court held that Indian tribes do not possess the inherent sovereign authority to continue cross-jurisdictional fresh pursuit and detain a non-Indian who violated the law on reservation land. This Comment argues the Eriksen Court’s reliance on RCW 10.92.020 is misplaced. RCW 10.92.020 is irrelevant to a consideration of sovereign authority. States do not have the authority to unilaterally define tribal power. A tribe retains sovereign powers not taken by Congress, given away in a treaty, or removed by implication of its dependent status. The Eriksen Court also misinterpreted the state statute as a limit on tribal authority to enforce laws and incorrectly dismissed the validity of cross-jurisdictional fresh pursuit of a non-felon. Eriksen guts the ability of tribes to enforce their sovereign right to uphold the law and safety on the reservation. To reinforce tribal power, Congress should enact legislation similar to the “DuroFix,” a statutory recognition of inherent sovereign authority.
Selected Law Review Articles
- Dakota Tribal Courts in Minnesota: Benchmarks of Self-Determination by Share Deer and John Jacobson, explores the twentieth-century history of each Dakota tribal government, including the development of each court and the current laws that govern the tribe.
- Indians and Guns by Angela R. Riley, endeavors to ﬁll a gap in existing gun rights scholarship. The relationship between Indians and guns holds particular salience for reservation residents, where crime is high, jurisdictional limitations cabin the ability of tribal governments to police Indian country, and political and ﬁscal barriers inhibit adequate complementary law enforcement by other sovereigns.
- Garden of Truth by Sarah Deer, explores the ugly reality of commercial sexual exploitation in the lives of American Indian women and girls, right here in the United States.
- Sex Discrimination Under Tribal Law by Ann E. Tweedy, broadly identifies and then briefly examines tribal laws that prohibit sex discrimination and secondarily addresses laws that make sex-based distinctions.
- Legal Pluralism and Tribal Constitutions by Keith Richotte, Jr. examines early nineteenth century New York in order to better understand the legal and political contexts in which they, and the tribal nations they serve, operate.
- The Native American Graves Protection and Repatriation Act at Twenty: Reaching the Limits of Our National Consensus by Steven J. Gunn, explores the success and failures of NAGPRA on the twentieth anniversary of its passage.
- Clean Water in Indian Country: The Risks (and Rewards) of Being Treated in the Same Manner as a State by Marren Sanders, examines the “Treatment as States” (TAS) provision of the CWA and the requirements that tribes must satisfy in order to exercise their sovereign right to environmental regulation within the reservation. TAS status carries with it enormous benefits or rewards, but also very real risks as tribes face legal and legislative uncertainty and jurisdictional challenges.
- The Plains Commerce Bank Decision and its Further Narrowing of the Montana Exceptions as Applied to Tribal Court Jurisdiction over Non-Member Defendants by Paul A. Banker and Christopher Grgurich, will discuss the facts that gave rise to the Plains Commerce Bank case, the development of the Montana rule and its exceptions, and the Supreme Court’s holding in Plains Commerce Bank as well as its implications for tribal jurisdiction.
- Taxation in Indian Country After Carcieri v. Salazar by Scott A. Taylor, discusses the Carcieri case, criticizes the Court’s decision, and explains how the Court reached its conclusion through sloppy statutory interpretation that ignored significant sections of text within the Indian Reorganization Act of 1934. It also explores the breadth of the Carcieri decision and demonstrates that its holding is far reaching, and considers the tribal, state, and federal tax consequences that occur when lands thought previously to be Indian trust lands take on a new status as non-trust lands that might be owned by the United States, by the individual tribe, or by a third party.
- Relocation Revisited: Sex Trafficking of Native Women in the United States by Sarah Deer, focuses on the history of sexual oppression of American Indian and Alaska Native women because they suffer sexual violence at the highest rate of any ethnic group within the United States, according to the federal government’s own crime statistics, and further examines the sexual exploitation of Native women through the lens of the United States’ own legal definition of trafficking. The abolition of human slavery is a laudable goal, and though the proactive role taken by the U.S. government in the last decade is commendable, the United States must be honest about its failings if it expects to reduce sexual slavery.
- The End of “Existing Indian Family” Jurisprudence: Holyfield At 20, In the Matter of A.J.S., and the Last Gasps of a Dying Doctrine by Dan Lewerenz and Padraic McCoy, demonstrates how state court judges and state legislatures have effectively neutered the “existing Indian family” doctrine in most jurisdictions where it has been considered, relegating it to little more than a troublesome footnote in a handful of states, and predicts that the tide will continue to turn against the doctrine until eventually it is completely rejected.
- Untangling the Jurisdictional Web: Determining Indian Child Welfare Jurisdiction in the State of Wisconsin by Dennis Puzz, Jr., addresses the jurisdictional issues between Tribes in Wisconsin subject to Public Law 280 and the State of Wisconsin itself along with an analysis of which sovereign is responsible for funding the services to the families.
- Dangerous Gamble: Child Support, Casino Dividends, and the Fate of the Indian Family by Marcia A. Zug, examines the consequences of permitting casino dividends to eliminate an Indian parent’s child support obligation and examine the current state of the Indian family and why money cannot easily solve many of the problems facing Indian families, and explains why the Cypress decision, which denies these benefits to Indian children, can be expected to continue to harm the Indian family.
- Tribal Citizen Participation in State and National Politics: Welcome Wagon or Trojan Horse? by Michael D. Oeser, focuses on the relationship between participation by reservation citizens in state and federal politics, and sovereign authority over reservation lands and residents, points out similarities between the theoretical tensions faced by the Founders relating to multiple sovereignties, and the dilemma faced by tribes today, and identifies accelerating trends in the area of tribal political participation and analyzes them in light of four fundamental American political principals and looks to the debates leading up to the ratification of the present U.S. Constitution for guidance on these principles.
- Building A Legacy Of Hope: Perspectives on Joint Tribal-State Jurisdiction by The Honorable Korey Wahwassuck, The Honorable John P. Smith, and The Honorable John R. Hawkinson
- Relocation Revisited: Sex Trafficking of Native Women in The United States, by Sarah Deer, focuses on the history of sexual oppression of American Indian and Alaska Native women who suffer sexual violence at the highest rate of any ethnic group within the United States. This paper further examines the sexual exploitation of Native women through the lens of the United States’ own legal definition of trafficking. The abolition of human slavery is a laudable goal, and though the proactive role taken by the U.S. government in the last decade is commendable, the United States must be honest about its failings if it expects to reduce sexual slavery.
- Aboriginal Family Trends: Extended Families, Nuclear Families, Families of the Heart, by Marlene Brant Castellano, tells the story about Aboriginal families which begins in a particular place, with real persons, in the way that knowledge is constructed in an Aboriginal world. Those who hear stories told orally are encouraged to listen with their hearts as well as their minds, because the features of experience — of particular experience — are understood to be manifestations of a larger reality, called the spiritual ...
- Alaska v. Native Village of Venetie Tribal Government: Redefining "Indian Country", by Warren Denetsosie
In Alaska v. Native Village of Venetie Tribal Government, the United States Supreme Court finally settled the meaning of the phrase “dependent Indian community” which is one of the three prongs of “Indian country”. However, the Supreme Court’s recent interpretation is unwelcome to Indian tribes for the reason that land over which tribes previously asserted sovereign authority can now be found to be outside their jurisdiction and within state control.
- American Indians and Law Libraries: Acknowledging the Third Sovereign, by Nancy Carol Carter
American Indian tribal governments constitute a third sovereign within the United States federal system. A higher legal profile among these self-governing entities multiplies legal issues and challenges law libraries. Law librarians are urged to deepen their understanding of American Indian law and tribal law and reconsider their handling within legal collections.
- The Challenges Facing Tribal Courts Today, by Douglas B.L. Enderson
Tribal courts play a vital role in helping Indian tribes create and maintain the social, political, economic, and legal environment necessary to a sovereign entity.
- The Changing Landscape of Indian Estate Planning and Probate, by Douglas Nash and Cecelia Burke
A comprehensive overview of the American Indian Probate Reform Act of 2004. The purpose of this article is to provide an understanding of AIPRA. First, the history of events leading up to AIPRA—essential information to understand the issues it purports to address—will be discussed. Second, provisions of AIPRA are discussed by key topics including the following: application to intestate and testate estates; rules of interpretation; application of AIPRA to trust personalty; mechanisms provided to reduce fractionation and consolidate ownership interests; tribal probate codes; and general rules governing the probate of Indian trust estates.
- Chipping Away at The Indian Child Welfare Act: Doe v. Mann and the Court’s “1984” Interpretation of ICWA and PL 280 by Jake J. Allen
In Doe v. Mann, the Ninth Circuit (Mann Court) held that the Indian Child Welfare Act (ICWA) did not provide exclusive jurisdiction to a tribe in California due to the tribe failing to “present to the Secretary [of the Interior] for approval a petition to reassume such jurisdiction which includes a suitable plan to exercise such jurisdiction.” The holding was based on the Mann Court’s reasoning that Public Law 280’s4 (PL 280) civil regulatory jurisdiction, when combined with the provisions of ICWA, divested the tribe of exclusive jurisdiction over involuntary child custody proceedings, and under ICWA’s § 1918(a), there was a requirement for the tribe to submit a plan to the Secretary of the Interior (Secretary) to regain exclusive jurisdiction over child custody cases involving Indian children residing on the reservation.
- Community Holistic Circle Healing: A Community Approach, by Berma Bushie
Berma Bushie of the Community Holistic Circle Healing project in Hollow Water, Manitoba, describes the use of healing circles as a response to sexual abuse in an Aboriginal community.
- Community is Not a Place: A New Look at Community Justice Initiatives, by Paul McCold and Benjamin Wachtel
Paper presented to the International Conference on Justice Without Violence: Views from Peacemaking Criminology and Restorative Justice, Albany, New York, June 5-7, 1997, by Paul McCold and Benjamin Wachtel, Community Service Foundation.
- CP 87 and CP 100: Allotment and Fractionation Within the Citizen Potawatomi Nation, by Mark Welliver
This article illustrates some of the problematic issues faced today by interest owners of Indian allotment land.
- Developing Effective Processes of American Indian Constitutional and Governmental Reform: Lessons from the Cherokee Nation of Oklahoma, Hualapai Nation, Navajo Nation and Northern Cheyenne Tribe by Eric Lemont
Over the past several decades, numerous American Indian nations have been revising their constitutions to create more legitimate, effective and culturally-appropriate governments. However, successful processes of reform have been hindered by a variety of universal challenges, including political obstacles to changing the status quo, difficulties in achieving effective citizen participation and insufficient mechanisms for resolving conflict ...
- Diné Bi Beenahaz’áanii: Codifying Indigenous Consuetudinary Law in the 21st Century, by Kenneth Bobroff
On November 1, 2002, the Navajo Nation Council acknowledged the survival of the fundamental laws of the Diné, recognizing four specific constituent elements — traditional law, customary law, natural law, and common law – and explaining the principles of each. This action by the legislature follows more than two decades of conscious efforts by the Navajo Nation judiciary to apply Navajo common law in written legal opinions and to incorporate traditional Navajo dispute resolution into the judicial system. This paper examines the Council’s efforts to incorporate consuetudinary law in its written statutes in English. It is primarily descriptive, attempting to provide a Spanish audience with an understanding of Diné legal principles employed by the Navajo legislature in first attempting codification of principles of Navajo consuetudinary law.
- Domestic Violence and Tribal Protection of Indigenous Women in the United States, by Gloria Valencia-Weber and Christine P. Zuni
The essential Navajo value is that while men and women are distinct, they relate as complementary equals. That kind of relationship creates, or should create, an environment that views violence toward women as deviant behavior. Under Navajo common law, violence toward women, or mistreatment of them in any way, is illegal ...
- The Dynamics of Navajo Peacemaking, by James W. Zion
Journal of Contemporary Criminal Justice, Vol. 14 No. 1, February 1998 58-74 © Sage Publications, Inc.
- Environmental Regulations on Indian Lands: A Question of Jurisdiction, by Lynn H. Slade and Walter E. Stern
Native American tribes play an increasingly critical role in regulating the environment on Indian lands. As tribes' regulatory muscles grow--often with the blessing of the federal government--the regulated community must learn to adapt not only to different regulatory standards and procedures, but also to a different legal system . . .
- Evolving the Hopi Common Law, by Pat Sekaquaptewa
A judicial system with well fleshed out judge made law, or common law, is one that promotes fairness, consistency, and a respect for local values ...
- Expanding the Network of Safety: Tribal Protection Orders for Survivors of Sexual Assault, by Sarah Deer
The right to exist in a world free from violence is a basic tenet in many indigenous cultures and governments. The epidemic of sexual violence perpetrated against Native American women in the United States reflects a fundamental breakdown in the cultural and legal norms that have served to provide protection to Native women from time immemorial. Current rates of sexual violence against Native women are extremely high and the response from the criminal justice systems is arguably weak or, in some cases, nonexistent. This article examines what we know about the nature and extent of sexual violence against Native women as distinct from other forms of violence, the impact of legal obstacles on survivors and tribal communities, and will offer one potential legal remedy for tribal judicial systems wishing to address the problem.
- A Federal Commitment to Tribal Justice Systems, by Janet Reno
Litigation practice and a series of projects of the U.S. Department of Justice support the federal government's longstanding policy of self-determination for Indian tribes.
- From Marshall to Marshall: The Supreme Court's Changing Stance on Tribal Sovereignty, by Philip J. Prygoski
Tribal sovereignty is not simply an abstract legal concept; it is part of the military, social, and economic development of our country. The following is a look at how the decisions of the Court for the past 170 years have defined, defended, and ultimately diminished that sovereignty . . .
- Improving the Relationship Between Indian Nations, the Federal Government, and State Governments, by Jerry Gardner
In order to effectively address criminal justice issues in Indian country and services for victims of crime in Indian country, it is vital that productive efforts are made to improve the relationship between Indian Nations, the federal government, and state governments. The first step required in any effort to improve these relationships is an understanding and recognition of the unique sovereign status of Indian Nations. Second, contemporary problems in the relationship between these governments should be examined. Third, recent examples of efforts to improve the relationship between these governments should be reviewed. Then, the potential use of written cooperative agreements - such as Memorandums of Understanding (MOUs) - to improve the relationship between these governments should be examined. Finally, practical tips for developing and implementing written cooperative agreements should be reviewed.
- The Indian Child Welfare Act - The Need for a Separate Law, by B. J. Jones
The Indian Child Welfare Act (ICWA), which was adopted by Congress in 1978, applies to child custody proceedings in state courts involving "Indian" children--children of Native American ancestry . . .
- Indian Common Law: The Role of Custom in American Indian Tribal Courts, by Robert D. Cooter and Wolfgang Fikentscher
Many American Indian Reservations have had modern tribal courts for at least 60 years. Have the distinctive social norms of Indians worked their way into judge-made law, or are tribal courts much like state courts? Is there Indian common law? To answer these questions, we interviewed tribal judges on reservations throughout the West. We found distinctively Indian social norms, both substantial and procedural, pervading tribal courts. Many of these norms are specific to particular tribes and some are shared by many tribes. Indian common laws (in the plural) are tribe-specific, so there is a comparative law of Indian common law. Applying the rules of conflict of laws requires knowledge of Indian common laws.
- "Indian Country" and the Nature and Scope of Tribal Self-Government in Alaska, by Geoffrey D. Strommer and Stephen D. Osborne
Today Alaska Native tribes face one of their most difficult challenges since the days of the Alaska Native Claims Settlement Act (ANCSA). Ever since the United States Supreme Court ruled in Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998), that ANCSA largely extinguished "Indian country" in Alaska, and thus the tribes' territorial jurisdiction, the extent of Alaska tribal sovereignty and authority has been shrouded in uncertainty. Using rural justice and law enforcement as a central example, the authors demonstrate that restoring Indian country to Alaska would promote numerous public policy objectives, benefiting both the tribes and the State.
- Indian Identity: Who's drawing the Boundaries?, by Rekha Balu
American Indian law is replete with ironies . . .
- Indian Restorative Healing, by James W. Zion
This paper is part of my continuing 21+ year quest to understand traditional Indian law. My latest attempt was a presentation on Navajo Restorative Justice to the Second International Conference on Therapeutic Jurisprudence in 2001“TJ” (therapeutic jurisprudence) is related to “RJ” (restorative justice) in many ways ...
- Indian Tradition and Custom in Adjudication under Rules of Evidence, by James W. Zion
This article addresses how tribal courts receive evidence of Indian tradition and custom under rules of evidence, discusses the definition and nature of tradition and custom in court settings, and their recognition as a legitimate form of law.
- Indigenous Justice Systems and Tribal Justice, by Ada Pecos Melton
Indigenous justice systems are based on a holistic philosophy. Law is a way of life, and justice is a part of the life process . . .
- Issue Paper: What Indian Tribes Can Do To Combat Child Sexual Abuse, by Larry EchoHawk and Tessa Meyer Santiago
One of the most destructive problems affecting children in “Indian country” today is sexual abuse. Increasing reports of child sexual abuse and the severe impact this type of crime has on Indian youth and their families have prompted tribal leaders to voice great concern about the impact of this crime on Indian communities.
- Law Enforcement Authority in Indian Country, by Melissa L. Tatum
The protection order has proven to be an effective tool in the war against domestic violence. A protection order, however, is good only so long as it can be enforced, and enforcement has proven to be a problem when a person travels with a protection order to a different jurisdiction. In an effort to address these problems, and to further boost the effectiveness of protection orders, Congress included in the Violence Against Women Act provisions that require full faith and credit for protection orders.
- Law Enforcement in Indian Country: The Struggle for a Solution, by Jonathan Mills and Kara Brown
In response to a request by the California Research Bureau, this paper outlines the legal framework governing law enforcement on Indian reservations in California and discusses various approaches to improving reservation safety. It also briefly discusses the procedure by which California could return jurisdiction over reservations to the federal government (“retrocession”).
- Multiple Sovereignties: Indian Tribes, States, and the Federal Government, by Judith Resnik
Although often unrecognized, three entities within the territory that constitutes the United States - Indian tribes, states, and the federal government - have forms of sovereignty. The rich and complex relationships among these three sovereignties need to become integrated into the discussion and law of federalism.
- The Navajo Response to Crime, by Robert Yazzie, Chief Justice of the Navajo Nation
Speech delivered by Chief Justice Yazzie at the National Symposium on Sentencing: The Judicial Response to Crime at the American Judicature Society in San Diego, California on November 2-3, 1997.
- A New Era of Federal - Tribal Court Cooperation, by J. Clifford Wallace
The Ninth Circuit Task Force on Tribal Courts is helping to encourage dialogue and bring about changes beneficial to the federal judiciary and tribal courts.
- A Primer on Tribal Court Civil Practice, by B.J. Jones
This article examines the current state of the law governing tribal court practice in North Dakota, with an emphasis on the ever-changing civil jurisdiction rules governing tribal courts, an examination of full faith and credit between tribal and state courts as well as between tribal courts, and a review of recent federal legislative proposals which undoubtedly will impact tribal court civil practice.
- Public Law 280: Issues and Concerns For Victims of Crime in Indian Country, by Jerry Gardner and Ada Pecos Melton
Public Law 83-280 (commonly referred to as Public Law 280 or PL 280) was a transfer of legal authority (jurisdiction) from the federal government to state governments which significantly changed the division of legal authority among tribal, federal, and state governments . . .
- Punishment versus Healing: How Does Traditional Indian Law Work?, by James W. Zion
Many people are skeptical of justice methods which do not have punishment as their driving force. There is a great deal of disbelief about traditional Indian law for that reason, and there are many who are leery of the growing restorative justice movement ...
- Questions and Answers About Public Law 280, by Carole Goldberg
This article provides answers to frequently asked questions about Public Law 280 - a federal statute enacted in 1953 which gave certain states jurisdiction in Indian country.
- The Reemergence of Tribal Society and Traditional Justice Systems, by Carey N. Vicenti
In their efforts to establish tribal culture, Indian tribes are relying on the restoration of traditional forms of adjudication.
- Resolving State - Tribal Jurisdictional Dilemmas, by Stanley G. Feldman and David L. Withey
As a project of the Conference of Chief Justices is demonstrating, it is possible through communication and cooperation to minimize jurisdictional problems between state and tribal courts.
- Restoring Harmony through Nalyeeh: Can the Navajo Common Law of Torts be Applied in State and Federal Forums?, by J. R. Mueller
This article demonstrates “that the Navajo Nation has developed and articulated a modern tort law and doctrine of restitution grounded in Navajo tradition and evolved from ancient custom, similar to the Anglo-American notion of common law.” This article also explores whether tribal customary law can be applied in state and federal forums in light of a recent federal case Cheromiah v. United States.
- Rethinking the Role of Custom in Tribal Court Jurisprudence, by Matthew L.M. Fletcher
Customary law still appears in many of the decisions of American state and federal courts. Customary law, part and parcel of the English common law adopted and adapted by the Founders of the United States, recurs less often given that statutory and administrative law dominate the field. In contrast, the importance of customary law in American Indian tribal courts cannot be understated. Indian tribes now take every measure conceivable to preserve Indigenous cultures and restore lost cultural knowledge and practices. Tribal court litigation, especially litigation involving tribal members and issues arising out of tribal law, often turns on the ancient customs and traditions of the people. But this development of applying customary law in tribal courts is new and undertheorized.
- Sarah Deer & Melissa Tatum, Tribal Efforts to Comply with VAWA's Full Faith and Credit Requirements: A Response to Sandra Schmieder, 39 Tulsa L. R. 403 (2003).
The Violence Against Women Act requires state and tribal governments to enforce one another's protection orders. This article explores the various problems with the cross-jurisdictional enforcement of protection orders in Indian country.
- A Second Century of Dishonor: Federal Inequities and California Tribes, by Carole Goldberg, J.D. and Duane Champagne, Ph. D., with assistance from Wallace T. Cleaves, Leroy Seidel, Chad Gordon , Patty Ferguson, Kit Winter, Lola Worthington and Lori Soghomonian
For over 100 years, studies conducted by federal, state, and private agencies have reached the same conclusion: California Indians are not receiving a fair share from federal Indian programs; and because they have received less support from the federal government, California Indians have suffered in social-economic well-being relative to other Indian groups in other states . . .
- Sovereignty of the Soul: Exploring the Intersection of Rape Law Reform and Federal Indian Law, by Sarah Deer
"...[I]t is impossible to separate theories of indigenous self--determination from theories on sexual assault jurisprudence. It is critical that a dual analysis be employed in both disciplines because sexual violence is so deeply imbedded in colonizing and genocidal policies."
- Surveying the Boundaries: State and Tribal Court Jurisdiction, by Beth Ermatinger Hanan & William H. Levit Jr.
When disputes concerning overlapping state court and tribal court jurisdiction occur within the (Wisconsin) Ninth and Tenth Judicial districts, the parties and courts can use an agreed-on procedure to determine which court has jurisdiction to proceed. When there is a risk of a deadlock between the courts, the federal tribal exhaustion doctrine, coupled with comity's critical role in resolving interjurisdictional disputes, makes deference to proceeding in tribal court more likely.
- This Land is My Land, This Land is Your Land: Markets and Institutions for Economic Development on Native American Reservations, by Ezra Rosser, describes reservation land regimes and economies, and then shows how two economic theories can enhance understanding of reservation development and can lead to both shared and divergent policy prescriptions.
- Tribal Courts: Providers of Justice and Protectors of Sovereignty, by Frank Pommersheim
Tribal courts are now the premier institutions that struggle to analyze and identify the extent of tribal jurisdiction and sovereignty.
- Tribal Law as Indigenous Social Reality and Separate Consciousness-[Re]Incorporating Customs and Traditions into Tribal Law, by Christine Zuni Cruz
There are few spheres in which social reality so insistently takes precedence over legal dictate as the tenacity with which people adhere to their way of life as forged in the crucible of everyday living; and so, whatever the declared legal situation, cognizance must always be given to the ‘living law’ of the community. This is indeed true of any community, and becomes all the more pertinent when that community, by whatever name known, has some sort of consciousness of its separate identity.
- Tribal-State Affairs: American States as 'Disclaiming' Sovereigns, by David E. Wilkins
The history of tribal-state political relations has been contentious from the beginning of the republic. As a result of these tensions, the relationship of tribal nations and the federal government was federalized when the U.S. Constitution was ratified in 1788. Thus, a number of states, especially in the West, were required in their organic acts and constitutions to forever disclaim jurisdiction over Indian property and persons. This article analyzes these disclaimer clauses, explains the factors that have enabled the states to assume some jurisdictional presence in Indian Country, examines the key issues in which disclaimers continue to carry significant weight, and argues that the federal government should reclaim its role as the lone constitutional authority to deal with indigenous nations.
- Troublesome Aspects of Western Influences on Tribal Justice Systems and Laws, by Alex Tallchief Skibine
The influence of western culture on tribal judicial systems is due to at least three distinct efforts pursued by the federal government. The first is the attempt to impose western norms on the structure and process of tribal judicial decision making. The second is the attempt to influence the culture of Indian tribes, and finally, the improper efforts to incorporate or integrate Indian tribes into the United States. After briefly discussing the efforts at imposing western norms on the culture and structure of tribal courts, this paper will focus on issues surrounding the integration of tribes within the United States.
- Victims of Crime: Issues in Indian Country, by Cathy Sanders
Since 1987, the Office for Victims of Crime (OVC) has focused discretionary Victims of Crime Act (VOCA) funds on improving services for federal victims of crime in Indian country.
- Victim Rights in Indian Country - an Assistant United States Attorney Perspective, by Christopher Chaney, discusses the implications of various laws and prosecution principles and how they affect cases. There are jurisdictional principles that govern Indian country criminal prosecutions. For example, the Major Crimes Act (18 U.S.C. § 1153) and the Indian Country General Crimes Act (18 U.S.C. § 1152) provide the jurisdictional basis for most federal prosecutions of criminal offenses which occur in Indian country (18 U.S.C. § 1151). There are evidentiary principles and constitutional principles that govern all federal criminal prosecutions. In addition to all of this, there are established principles which apply when dealing with victims and witnesses of federal crime.
Morisset, Schlosser, Ayer, & Jozwiak has a series of papers on Indian Law, including the following:
- The Best Interests of the Indian Child: Federal Gloss on a State Law Concept, Regina M. Cutler (May, 2004)
- Cultural Resource Protection Strategies: Post “Kennewick Man,” Rob Roy Smith (May, 2004)
- Jurisdiction Case Law Basics: How Jurisdiction Relates to Tribal Utility Regulation, Thomas P. Schlosser (May, 2003)
- Updated Primer on Federal Recognition and Current Issues Affecting the Process, Jennifer P. Hughes (November, 2001)
- Tribal Rights and their Effect on our Concept of Property Rights in the Northwest, Mason D. Morisset (November, 2001)
- Environmental Enforcement on Tribal Lands: Congressional Authority and Major Case Law, Thomas P. Schlosser (August, 2001)
- Tribal Civil Jurisdiction over Nonmembers, Thomas P. Schlosser (June, 2001) View as a PowerPoint Presentation
- Judicial Update 2000-2001 Federal Case Law on American Indians, Kyme Allison McGaw (May, 2001)
- Primer on Federal Recognition and Current Issues Affecting the Process, Jennifer P. Hughes (Febuary, 2001)
- Judicial Update 1999-2000 Federal Case Law on American Indians, Thomas P. Schlosser (September, 2000) View as a PowerPoint presentation
- Why Doing Business on Reservations is Unique, Thomas P. Schlosser (May, 2000) View as a PowerPoint Presentation
- Tribal Civil Jurisdiction, Thomas P. Schlosser (March, 2000) View as a PowerPoint Presentation
- Federal Delegation of Tribal Jurisdiction over Nonmembers, Thomas P. Schlosser (September, 1999)
- Recent Developments in Defining the Federal Trust Responsibility (The Case of the Reluctant Guardian), Mason D. Morisset (April, 1999)
- Sovereign Immunity (Should the Sovereign Control the Purse?), Thomas P. Schlosser (October, 1998)
- Taxation of Businesses in Indian Country, Thomas P. Schlosser (March, 1996)
- Enforcing Tribal Court Judgments in State Court: Three Perspectives, Kyme Allison McGaw (September 1994)
- Locating the National Indian Forest Resources Management Act in the Tortured History of Indian Timber Management, Thomas P. Schlosser (February, 1992)
- Tribal Court Handbook for the 26 Federally Recognized Tribes in Washington State, Prof. Ralph Johnson and Rachel Paschal (2d Ed. September 1992)
The Indian Country Child Trauma Center (ICCTC) was established to develop trauma-related treatment protocols, outreach materials, and service delivery guidelines specifically designed for American Indian and Alaska Native (AI/AN) children and their families. The Indian Country Child Trauma Center is part of the National Child Traumatic Stress Network funded by the Substance Abuse Mental Health Services Administration (SAMHSA) under the National Child Traumatic Stress Initiative. It is housed at the University of Oklahoma Health Sciences Center in the Center on Child Abuse and Neglect. A current program includes Project Making Medicine (PMM).
- Developing and Implementing Memorandums of Understandings Between Tribes, the Federal Government and the State Government
- Public Law 280: Issues and Concerns for Victims in Indian Country
- Abusers Who Were Abused: Myths and Misunderstanding
- Community Readiness: A Promising Model for Community Healing
- Confidentiality Issues in Child Physical and Sexual Abuse Case
- Dealing with Disclosure of Child Sexual Abuse
- The Difference Between Forensic Interviews and Clinical Interviews
- Child Advocacy Centers in Indian Country
- History of Victimization in Indian Country
- Native Americans and HIV/AIDS
- An Overview of Elder Abuse in Indian Country
- Psychological Evaluations
- Role of Indian Tribal Courts in the Justice System
- Multidisciplinary Teams and Child Protection Teams