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2011 American Indian Law Deskbook Supplement

Conference of Western Attorneys General

Publication Year: 2011

“CWAG's American Indian Law Deskbook has quickly become one of the most authoritative and up-to-date works in the field, and CWAG has dutifully published yearly supplements... The most thorough survey available of the legal relationship among tribes, states, and the federal government."—The Federal Lawyer

Thorough, scholarly, and balanced, The American Indian Law Deskbook, Fourth Edition, published in February 2009, is an invaluable reference for a wide range of people working with Indian tribes, including attorneys, legal scholars, government officials, social workers, state and tribal jurists, and historians. The 2011 Supplement reviews cases issued, as well as statutes and administrative rules adopted, from July 2010 through June 2011. It additionally covers law review articles published between spring 2010 and spring 2011

Published by: University Press of Colorado

Title Page, Copyright

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pp. c-iv

Contents

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pp. v-vi

Preface

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pp. vii-x

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Chapter 1 Federal Indian Law Policy:Origins and Legal Development

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pp. 1-14

Michael D. Oeser, Tribal Citizen Participation in State and National Politics: Welcome Wagon or Trojan Horse?, 36 Wm. Mitchell L. Rev. 793, 825–26 (2010) (“[A] person with tribal ancestry is not necessarily politically ‘Indian.’ Such a person is genetically Indian, might be culturally ‘Indian,’ and might even be entitled to tribal citizenship, but until enrollment, he or she forms no part...

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Chapter 2 Indian, Indian Tribe, and Indian Country

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pp. 15-22

2010 Census, 2,932,248 persons identified themselves as one-race Indians, while 5,220,579 persons identified themselves as either one-race or multiplerace Indians.3 In the prior Census, 7,876,568 persons claimed American Indian “ancestry or ethnic origin”4 but this question was not asked on the 2010 census. The 2010 Census data indicated that 43.8 percent of persons identifying...

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Chapter 3 Indian Land and Property: Title and Use

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pp. 23-35

; see also Oglala Sioux Tribe v. United States Corps of Eng’rs, 570 F.3d 327, 331 (D.C. Cir. 2009) (“Congress deliberately used broad terminology in the Act in order to permit tribes to bring all potential historical claims and to thereby prevent them from returning to Congress to lobby for further redress”), cert. denied, 130 S. Ct. 3503 (2010)...

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Chapter 4 Criminal Law

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pp. 36-42

United States v. Fox, 573 F.3d 1050 (10th Cir. 2009) (statute prohibiting a felon from possessing a firearm is a law of general applicability and the Navajo Nation’s Treaty of 1868’s right to hunt did not insulate a tribal member from prosecution for possession of firearm by a felon), cert. denied, 130 S. Ct. 813 (2009); United States v. Fiander, 547 F.3d 1036 (9th Cir. 2008) (tribal member...

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Chapter 5 General Civil Regulatory Jurisdiction

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pp. 43-48

Another commentator, however, has suggested that “Congress should carefully deliberate” over proposed legislation that would extend tribal criminal jurisdiction to non-Indians and cited Justice Kennedy’s concurrence insofar as it stressed the importance of the “federal structure.” Patience Drake Roggensack, Plains Commerce Bank’s Potential Collision with the Expansion of...

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Chapter 6 Civil Adjudicatory Jurisdiction

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pp. 49-56

, vacated in part & remanded, 569 F.3d 589, 596 (6th Cir. 2009) (§ 1983 claim remanded for determination of “whether the [tribe] was entitled to the federal funds (a) only as a result of its sovereignty, or (b) simply because it provides certain social services” since, under any “plausible” reading of Inyo County,...

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Chapter 7 Tribal Sovereign Immunityand the Indian Civil Rights Act

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pp. 57-69

NLRB v. Fortune Bay Resort Casino, 688 F. Supp. 2d 858, 871 (D. Minn. 2010) (rejecting sovereign immunity claim with respect to subpoena issued by the National Labor Relations Board’s General Counsel because “the underlying proceeding” was a “prosecution” in which the General Counsel was “responsible for enforcing the public interest, not for enforcing the rights of private litigants”);...

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Chapter 8 Indian Reserved Water Rights

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pp. 70-72

See also Jeff Candrian, Note & Comment: Building With Blinders On: How Policymakers Ignored Indian Water Rights to the Colorado, Setting the Stage for the Navajo Claim, 22 Colo. J. Int’l Envtl. L. & Pol’y 159 (2011) (discussing how the lower basin states of the Colorado River failed to take into account the potential tribal claims to water and how those claims may upend the current water allocation system)....

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Chapter 9 Fish and Wildlife Regulation

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pp. 73-80

San Luis & Delta-Mendota Water Auth. v. Salazar, 638 F.3d 1163 (9th Cir. 2011), petition for cert. filed, 80 USLW 3004 (U.S. June 22, 2011) (No.10-1551); Alabama- Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007);...

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Chapter 10 Environmental Regulation in Indian Country

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pp. 81-85

Although this chapter focuses principally on regulatory schemes administered by EPA, other federal statutes designed in whole or part to address environmental concerns play an important role both as to Indian country and lands outside Indian country where a tribe claims some interest. As to the latter laws, tribes have access to, and often use, the judicial remedies...

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Chapter 11 Taxation in Indian Country

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pp. 86-93

; see generally Alex Tallchief Skibine, Tribal Sovereign Interests Beyond the Reservation Borders, 12 Lewis & Clark L. Rev. 1003, 1006, 1042 (2008) (reasons that “because the concept of territorial sovereignty, both in the United States and abroad, has been significantly eroded or modified, there are no valid reasons why tribal sovereign interests should be strictly limited to the reservation...

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Chapter 12 Indian Lands Gaming

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pp. 94-106

See generally Allison Sirica, A Great Gamble: Why Compromise is the Best Bet to Resolve Florida’s Indian Gaming Crisis, 61 Fla. L. Rev. 1201, 1201–31 (2009) (examining in detail the two-decade clash between the Seminole Tribe and Florida over the operation of class III gaming in the state); Matthew G. Struble, Seminole Gaming Compact Part II: Whether Senate Bill 788 Satisfies the Compact...

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Chapter 13 Indian Child Welfare Act

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pp. 107-129

In re Noreen G., 105 Cal. Rptr. 3d 521, 545 (Ct. App. 2010) (although “ICWA itself does not require an inquiry, where, as here, no evidence of an Indian child has been presented[,]” relevant state law imposes “ ‘an affirmative and continuing duty to inquire whether a [dependent] child . . . is or may be an Indian child in all dependency proceedings”); In re R.R., 103 Cal. Rptr. 3d 110, 122–24 (Ct. App. 2009) (ICWA did not preempt extension of its protections...

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Chapter 14 State-Tribal Cooperative Agreements

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pp. 130-134

N.M. Stat. Ann. §§ 11-18-1 to -5 (State-Tribal Collaboration Act adopted in 2009 and requiring New Mexico state agencies to establish policies and appoint tribal liaisons to promote effective communication and collaboration between that state agencies and tribes; providing for training and an annual summit);...

Table of Cases

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pp. 135-144

Table of Codes, Public Laws, and Regulations

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pp. 145-146

Bibliography

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pp. 147-155


E-ISBN-13: 9781607321910
E-ISBN-10: 1607321912
Print-ISBN-13: 9781607321880
Print-ISBN-10: 1607321882

Page Count: 160
Publication Year: 2011