Indigenous Governance Law Law B584 A, B, C - 4 Credits Fall 2017 / 2 Credits Winter 2018
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1 Indigenous Governance Law Law B584 A, B, C - 4 Credits Fall 2017 / 2 Credits Winter 2018 Professor Eric D. Eberhard, JD, LL.M Phone: 206: 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: Texts MATTHEW L.M. FLETCHER, FEDERAL INDIAN LAW (2016) ISBN: JOHN J. BORROWS & LEONARD I. ROTMAN, ABORIGINAL LEGAL ISSUES: CASES, MATERIALS & COMMENTARY ( 4 th ed. 2012) ISBN:
2 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. 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. Unless specific pages are assigned, we will use the full text of books, 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. Suggested additional reading material will be available in the Course Materials folder to assist you in selecting a topic 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 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. I will communicate with you throughout the Quarter by . Consistent with the Rules of Professional Conduct, it is your responsibility to check your regularly and to respond in a timely way to when appropriate. I will use it to distribute material or to advise you that new material is available on the TWEN site for the class. I will also use to notify you of any last-minute changes for a class session or to schedule appointments to meet with you. If you would like to make an appointment to meet with me please let me know before or after class or by . 2
3 Disability-Related Needs I want to make sure that you can attend class and do so comfortably and conveniently. 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 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 week of classes. Class time will be made available on November 30th for filling out 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. 3
4 Your paper must reflect your original research and writing not a paper prepared for another class or purpose. Papers should not be less than 20 pages and must not be more than 25 pages in length, including footnotes, but not including a title page. 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. End notes are not acceptable. Footnotes are an important part of legal writing and analysis. You should use Bluebook citation forms. 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. Wikipedia, AmJur and CJS are not acceptable sources of authority and should not be cited. Your paper topic is due on October 19 th. On October 24 th we will devote class time to a research Workshop. A member of the Gallagher library research faculty will join us. On October 26 th we will devote the class time to a writing workshop to go over the basics of academic legal writing, including topic selection, 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 2 nd. A detailed outline of your paper must be submitted to me by on or before November 21 st at 5:00 PM. Final papers must be submitted to me by on or before December 15 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 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. 4
5 Reading Assignments Week 1 September 26 th & 28 th - Overview of the Development of Federal Indian Law from the Colonial Period to the Present Fletcher, pages 1-115, Week 2 October 3 rd & 5 th - Shifting Federal Law and Policy and the Re-Assertion of Tribal Governance Fletcher, pages Indian Reorganization Act Lawrence C. Kelly, The Indian Reorganization Act: The Dream and Reality, 44 PAC.HIST. REV. 301 (1975) (PDF) 25 U.S.C. 461 et seq. Termination/Restoration Menominee Tribe Pub. L. No , 68 Stat. 250 (June 17, 1954) (PDF) Pub. L. No , 87 Stat. 770 (Dec. 22, 1974) (PDF) Menominee Tribe v. United States, 358 U.S. 217 (1959) (PDF) 25 U.S.C. 903 et seq. State Jurisdiction Carole E. Goldberg, Public Law 280: The Limits of State Jurisdiction over Reservation Indians, 22 UCLA L. REV. (1975) (PDF) Pub. L. No , 68 Stat. 588 (Aug.15, 1953) (PDF) 28 U.S.C. 1360; 18 U.S.C. 1162; 25 U.S.C Bryan v. Itasca County, 426 U.S. 373 (1976) (PDF) California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) (PDF) Week 3 October 10 th & 12 th - Self-Determination and Self Governance John F. Kennedy, Letter on Indian Affairs to Mr. Oliver LaFarge, President, Association of American Indian Affairs, October 28, 1960 (PDF) 5
6 Declaration of Indian Purpose, National Congress of American Indians (1961) (PDF) Lyndon Johnson, Special Message to Congress, March 6, 1968, Public Papers of the President of the United States: Lyndon Johnson, 1968, 336 (PDF) Richard Nixon, Special Message to Congress, July 8, 1970, Public Papers of the President of the United States: Richard Nixon, 1970, 564 (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) COHEN S HANDBOOK OF FEDERAL INDIAN LAW (Nell Jessup Newton ed., 2012) (Available online at LexisAdvance) (PDF Indian Self Determination and Education Assistance Act, 25 U.S.C. 450 et seq. Week 4 October 17 th and 19 th - Tribal Justice Systems (Paper Topics Due on October 19 th ) Fletcher, Matthew L. M., Tribal Justice Systems (January 13, 2014). MSU Legal Studies Research Paper No Available at SSRN: (PDF) Indian Civil Rights Act Eric Cheyfitz, The Colonial Double Bind: Sovereignty and Civil Rights in Indian Country, 5 J. CONST. L. 223 (2003) (PDF) Indian Civil Rights Act, 25 U.S.C et seq. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) (PDF) Indian Tribal Justice Act 25 U.S.C et seq. Indian Tribal Justice Technical and Legal Assistance Act 25 U.S.C et seq. Exhaustion of Tribal Court Remedies National Farmers Union Insurance v. Crow Tribe of Indians, 471 U.S. 845 (1985) (PDF) Iowa Mutual Insurance v. LaPlante, 480 U.S. 9 (1987) (PDF) 6
7 Week 5 - October 24 th & 26 th - Limitations on Inherent Tribal Authority (Research Workshop on October 24 th. Writing Workshop on October 26th) Fletcher, pages Carole E. Goldberg, President Nixon s Indian Law Legacy: A Counterstory, 63 UCLA L. Rev (2016) (PDF) Worcester v. Georgia, 31 U.S. 515 (1832) (PDF) United States v. Kagama, 118 U.S. 375 (1886) (PDF) Williams v. Lee, 358 U.S. 217 (1959) (PDF) Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) (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) Week 6 October 31 st & November 2 nd - First Nation Governance in Canada (Paper Topics and Thesis Presentations on November 2 nd ) Borrows & Rotman, pages 1 90 Indian Act (PDF) (Optional) Canadian Constitution Acts 1867 & 1982 (PDF) (Optional) Canadian Truth & Reconciliation Commission Executive Summary (PDF) (Optional) REPORT OF THE ROYAL COMMISSION ON ABORIGINAL PEOPLES: RESTRUCTURING THE RELATIONSHIP, VOL. 2, (1996), pages (PDF) (Optional) Week 7 November 7 th & 9 th - Inherent Aboriginal Rights in Canada Borrows & Rotman, pages Week 8 November 14 th & 16 th - Aboriginal Title (No Class on November 14 th ) Borrows & Rotman, pages , , Delgamukw v. British Columbia, [1997] 3S.C.R (PDF) (Optional) 7
8 Tsilhqot in Nation v. British Columbia, [2014] 2 S.C.R. 246 (PDF) Week 9 November 21 st - Treaties (Detailed Paper Outlines Due on November 21st) (No class on November 23 rd ) Borrows & Rotman, pages , Week 10 November 28 th & 30 th Treaties, The Crown s Fiduciary Duty (Course Evaluation on November 30 th ) Borrows & Rotman, pages , Week 11 December 5 th Inuit Rights & Metis Rights Borrows & Rotman, pages , Papers are Due on December 15th at 5:00 P.M. and should be submitted by at ee23@uw.edu 8
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