Indigenous Governance Law Law B584 A, B, C - 4 Credits Fall 2018 Professor Eric D. Eberhard, JD, LL.M Phone: 206:890-5363 Email: ee23@uw.edu Office Location: William H. Gates Hall, Room 326 Office Hours: By Appointment Indigenous Governance Law T and TH 3:30-5:20 PM William H. Gates Hall Room 118 Course Description. This course provides a framework for understanding the laws of the United States and Canada with respect to Indigenous people; the grounding of those laws in the history of both nations as colonies of Great Britain and the historical and contemporary impacts of settler colonialism on the governance of Indigenous communities. Learning Objectives: This seminar is intended to: Broaden and deepen your knowledge and understanding of the foundational laws and policies governing the Indigenous peoples in the United States and Canada and the authority and rights of those people to be self-governing. Strengthen your core skills in critical thinking, legal research, analysis and writing. Required Texts, Additional Course Materials and Reading Assignments: Required Text MATTHEW L.M. FLETCHER, PRINCIPLES OF FEDERAL INDIAN LAW (2017) ISBN: 978-1- 634460-623-3 Additional Course Materials Some course materials will be available in PDF format and will be posted on TWEN in the Course Materials Folder. Cases and statutory material will be available on WEST. 1
Some material will be available on LexisNexis or Hein Online as noted in the reading assignments or in class. Reading Assignments The reading assignments for each class are listed below. All assigned reading is required except where it is identified as optional. Unless specific chapters, pages or sections are assigned, we will use the full text of reported court opinions, statutes and law review articles for our class discussions. There may be occasional supplemental materials or assignments depending on developments in the law during the Quarter. Reading assignments are sequential and for the dates indicated. I will suggested additional reading material to assist you in selecting a topic for your paper or to assist you in doing the research for your paper. Attendance I assume that you are in the class because of a desire to learn the law involved and that you will attend and participate accordingly. Reading the assignments is required. Class participation and preparation are important and will be a factor in your final grade. With a few exceptions, the format will be discussion as opposed to lecture. Attendance will be checked each week. If you are ill or cannot attend a class for any reason, please notify me by e-mail in advance whenever possible and as soon as possible after the class if prior notice is not possible. We will adhere to the ABA standards for attendance. E-mail I will communicate with you throughout the quarter by e-mail. Consistent with the Rules of Professional Conduct, it is your responsibility to check your e-mail regularly and to respond in a timely way to e-mail when appropriate. I will use e-mail to distribute material or to advise you that new material is available on the TWEN site for the class. I will also use e-mail to notify you of any last-minute changes for a particular class or to schedule appointments to meet with you. If you would like to schedule an appointment to meet with me please let me know before or after class or by e-mail. Disability-Related Needs I want to make sure that you can attend class and do so comfortably and conveniently. 2
If you have already established accommodations with Disability Resources for Students (DRS), please communicate your approved accommodations to me at your earliest convenience so we can discuss your needs. If you have not yet established services through DRS, but have a temporary health condition or permanent disability that requires accommodations (conditions include but are not limited to; mental health, attention-related, learning, vision, hearing, physical or health impacts), you are welcome to contact DRS at 011 Mary Gates Hall or 206-543- 8924 or uwdrs@uw.edu or disability@uw.edu DRS offers resources and coordinates reasonable accommodations for students with disabilities and/or temporary health conditions. It is the policy and practice of the University of Washington to create inclusive and accessible learning environments consistent with federal and state law. Cell Phones and Computers Cell phones should be turned off in the classroom. Computers should only be used to take notes during the discussion in class or to access the materials for the course. Course Evaluation Course evaluations are available online during the last full week of classes. Class time will be made available on December 4th for completing your evaluation. Please bring a laptop or mobile device to class on this date to participate in the evaluation. Guests and Visitors Guests and visitors are welcome to observe the class with my prior approval. Papers This course requires you to do the research and writing necessary to present and defend a thesis on a topic in Indigenous law. Papers will be graded based upon the degree to which the topic lends itself to original, rigorous analysis; the quality of the analysis; the research conducted and applied; and the basic requirements for legal writing. I will suggest possible topics as we discuss the materials for each class and I will confer with you about the suitability of your topic, but you should select a topic that interests you first. Your paper must reflect your original research and writing not a paper prepared for another class or purpose. 3
Papers should not be less than 15 pages and must not be more than 25 pages in length, including a bibliography or footnotes, but excluding the title page. Masters of Jurisprudence degree candidates may use a bibliography that is consistent with the requirements of the Chicago Manual of Style. JD and LL.M. students must use footnotes that conform to the Bluebook. Footnotes are an important part of legal writing and analysis. Endnotes are not acceptable. The title page should include your name, the title of the paper, the name of the course and the date on which it is submitted. Pages should be numbered. Text should be double spaced, 12-point font with one inch margins. Footnotes should be in 10-point font and single spaced. Primary source materials such as judicial opinions, statutes and regulations should be read and analyzed rather than referenced based on their inclusion in a law review article. Ideas that are not your original thinking should be properly attributed. Be sure you proofread your paper carefully and use available software to check spelling and grammar. Use a dictionary and/or a thesaurus to check proper usage of words and terms if you are unsure of their meaning. Wikipedia, AmJur and CJS are not acceptable sources of authority and should not be cited. Your paper topic is due on or before October 23rd. On October 25 th we will devote the class time to a writing workshop to go over the basics of academic legal writing including developing a thesis, drafting outlines and available writing resources. You will present the topic for your paper and a draft thesis to the class on November 1st. A detailed outline of your paper must be submitted to me by e-mail on or before November 20 st at 5:00 PM. Final papers must be submitted to me by e-mail on or before December 14 th at 5:00 PM. Grades Grades will be based on your paper, your preparation for and participation in class and your attendance. The paper will count for up to 75 points: Complexity of topic and issue addressed 15 points Research quality/quantity 20 Writing grammar, spelling, citation form, style 20 Analysis of issues, application of research, conclusion 20 4
Participation in discussions during class will be weighed based on quality, not quantity, and will include questions asked, issues raised, arguments presented and discussions joined. Class participation and attendance will count for up to 25 points toward the final grade. Reading Assignments Week 1 September 27 th Introduction to the course and Overview of the Development of Federal Indian Law from the Colonial Period to the Present Fletcher, pages 1-39 Week 2 October 2 nd & 4 th - Shifting Federal Law and Policy and the Re-Assertion of Tribal Governance Fletcher, pages 41-92 Cherokee Cases Fletcher v. Peck, 10 U.S. 87 (1810) (PDF) Cherokee Nation v. Georgia, 30 U.S. 1(1831) (PDF) Worcester v. Georgia, 31 U.S. 515 (1832) (PDF) Menominee Termination & Restoration Pub. L. No. 83-399, 68 Stat. 250 (June 17, 1954) (PDF) Pub. L. No. 84-715, 70 Stat. 544 (July 14, 1956) (PDF) Pub. L. No. 85-488, 72 Stat. 290 (July 2,1958) (PDF) Pub. L. No. 87-432, 76 Stat. 53 (April 4, 1962) (PDF) Pub. L. No. 89-653, 80 Stat. 903 (October 14, 1966) (PDF) Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968) Pub. L. No. 93-197 (Dec. 22, 1973) (PDF) Public Law 280 Carole E. Goldberg, Public Law 280: The Limits of State Jurisdiction over Reservation Indians, 22 UCLA L. REV. (1975) (PDF) (Optional) Bryan v. Itasca County, 426 U.S. 373 (1976) (PDF) 5
Pub. L. No. 83-280, 68 Stat. 588 (Aug.15, 1953) (PDF) (Optional) 28 U.S.C. 1360; 18 U.S.C. 1162; 25 U.S.C. 1321-1326 (Optional) Self-Determination Declaration of Indian Purpose, National Congress of American Indians (1961) (PDF) (Optional) Lyndon Johnson, Special Message to Congress, March 6, 1968, Public Papers of the President of the United States: Lyndon Johnson, 1968, 336 (PDF) (Optional) Richard Nixon, Special Message to Congress, July 8, 1970, Public Papers of the President of the United States: Richard Nixon, 1970, 564 (PDF) (Optional) Morton v. Mancari, 417 U.S. 535 (1974) (PDF) Bobbie Kilberg, Self-Determination and Tribal Sovereignty: The Lasting Impact of the Nixon Administration, Keynote Address, Richard Nixon Presidential Library and Museum, April 24, 2015 (PDF) (Optional) Carole E. Goldberg, President Nixon s Indian Law Legacy: A Counterstory, 63 UCLA L. Rev. 1506 (2016) (PDF) (Optional) COHEN S HANDBOOK OF FEDERAL INDIAN LAW 22.02 (Nell Jessup Newton ed., 2012) (PDF) (Available online at LexisAdvance) Indian Self Determination and Education Assistance Act, 25 U.S.C. 450 et seq. (Optional) Week 3 October 9 th & 11 th Indian Property Interests and the Federal Tribal Relationship Fletcher Pages 93 161 Indian Property Interests Johnson v. M Intosh, 21 U.S. 543 (1823) (PDF) Abrogation of Treaties Lone Wolf v Hitchcock, 187 U.S. 553 (1903) (PDF) Laws of General Applicability Donovan Coeur d Alene Tribal Farm, 751 F.2d 113 (9th Cir. 1985) (PDF) Claims for Breach of Trust United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003) 6
United States v. Jicarilla Apache Nation, 564 U.S. 162 (2011) (PDF) Claims for Breach of Trust Table (PDF) Week 4 October 16 th and 18 th Tribal Sovereignty and Native Nation Building/Indian Country and Criminal Jurisdiction Fletcher 163-222 Indian Civil Rights Act Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) (PDF) Indian Civil Rights Act, 25 U.S.C. 1301 et seq. Sovereign Immunity Michigan v. Bay Mills, 134 S. Ct. 2024 (2014) (PDF) William Wood, It Wasn t An Accident: The Tribal Sovereign Immunity Story, 62 AM. U. L. REV. 1587 (2013) (PDF) Congressional Waivers of Sovereign Immunity (PDF) Criminal Jurisdiction Ex Parte Crow Dog, 109 U.S. 556 (1883) (PDF) United States v. Kagama, 118 U.S. 375 (1886) (PDF) Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) (PDF) Criminal Jurisdiction Table 689 United States Attorney Manual (PDF) Matthew L.M. Fletcher, TRIBAL JUSTICE SYSTEMS, SSRN 2378526 (PDF) (Optional) Week 5 - October 23 rd & 25 th Tribal and State Conflicts Over Civil Jurisdiction/Indian Religion and Culture (Paper Topics Due on October 23rd) (Writing Workshop on October 25th) Fletcher, pages 223 272, 291 308 Exhaustion of Tribal Court Remedies National Farmers Union Insurance v. Crow Tribe of Indians, 471 U.S. 845 (1985) (PDF) 7
Iowa Mutual Insurance v. LaPlante, 480 U.S. 9 (1987) (PDF) Tribal and State Civil Jurisdiction Williams v. Lee, 358 U.S. 217 (1959) (PDF) Montana v. United States, 450 U.S. 544 (1981) (PDF) Strate v. A-1 Contractors, 520 U.S. 438 (1997) (PDF) Nevada v. Hicks, 533 U.S. 353 (2001) (PDF) Plains Commerce Bank v. Long Cattle Company, 554 U.S. 316 (2008) (PDF) Religious Freedom Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988) (PDF) Kristen A. Carpenter, Limiting Principles and Empowering Practices in American Indian Religious Freedoms, 45 CONN. L. REV. 387 (2012) (PDF) Week 6 October 30th & November 1st Introduction to Canada (Paper Topics and Thesis Presentations on November 1st) Prime Minister Trudeau Remarks United Nations (2017) (Audio Recording) Map of Canada (PDF Pronunciation Guide for the Tribes of British Columbia (PDF) 1867 and 1982 Constitutions (PDF) Sections 91(24) and 92 (1867) and Sections 15,25, and 35 (1982) Indian Act (PDF) Canadian Courts (PDF) Metis Rights (PDF) Consultation (PDF) Nunavut Act (PDF) Nunavut Land Claims Agreement (PDF) Executive Summary of the Final Report of the Truth and Reconciliation Commission (2015) (Optional) REPORT OF THE ROYAL COMMISSION ON ABORIGINAL PEOPLES: RESTRUCTURING THE RELATIONSHIP, VOL. 2, (1996), pages 102-412 (PDF) (Optional Reading) 8
Week 7 November 6 th & 8 th - Aboriginal Rights in Canada R. v. Sparrow, [1990] 1 S.C.R. 1075 (S.C.C.) (PDF) R. v. Van der Peet [1996] 2 R.C.S. 507 (S.C.C.) (PDF) November 8 th Guest Lecture - Mary Whisner on the UW Indian Law Research Guide Week 8 November 13 th & 15 th - Aboriginal Rights in Canada Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (S.C.C.) (PDF) No Class on November 15 th Week 9 November 20th - Aboriginal Rights in Canada (Detailed Paper Outlines Due on November 20th) Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 (PDF) No class on November 22 rd Week 10 November 27 th & 29 th Aboriginal Rights in Canada Tsilhqot in Nation v. British Columbia, [2014] 2 S.C.R. 246 (S.C.C.) (PDF) Ktunaxa Nation v. British Columbia, [2017] 2 S.C.R. 386 (S.C.C.) (PDF) Week 11 December 4 th - Federalism and Constitutional Issues (Course Evaluation) Tsleil-Waututh Nation v. Attorney General of Canada, 2018 FCA 153-2018-08-30 (PDF) Papers are Due on December 14th at 5:00 P.M. and should be submitted by e-mail to ee23@uw.edu 9