Syllabus

Federal Indian Law, Fall 2016

Professor Jessica Owley

E-mail and phone:  jol@buffalo.edu, 716-645-8182

Class Time and Place:  Mondays and Wednesdays 9-10:30am in 706 O’Brian

Classes run from September 12, 2016 to November 30, 2016

Office Hours: Mondays and Wednesdays 3pm–5pm and by appointment

Special Note: Unfortunately, I cannot seem to find a way out of needing to cancel our very first scheduled class meeting on September 7th. Therefore, this class will actually start meeting on September 12th. We will find a mutually agreed upon time or method to make up the skipped class later in the semester.

 Course Description: In Federal Indian Law, you will learn about the legal relationship between American Indian nations and the United States, including implications for states and individual citizens. American Indian tribes have a legal status that is unique both within our legal system and throughout the world. The United States Supreme Court has affirmed that Tribes are sovereign nations with rights to self-governance. And yet the Court has also acquiesced in the unilateral Congressional abrogation of aspects of that sovereign status. In addition, the Supreme Court itself has also engaged in extensive common law decision-making regarding the scope of tribal sovereignty. The resulting complex legal framework affects not only tribes and individual tribal members, but non-Indians as well. To understand the complexities of the present, it is necessary to have some understanding of the historical situation that brought us here. The course will therefore begin with historical materials, followed by an overview of federal Indian policy periods, and then will proceed to examine the legal framework chronologically at first, and then by subject matter.

Student Learning Outcomes: The main goal of this course is for students to gain a fundamental understanding of the relationship between American Indian tribes and the federal government. Students will learn the history of tribes in the United States in relationship to all three branches of the federal government. Students will learn how to read and interpret Indian treaties and federal laws pertaining to tribes (including covering the unique canons of construction that apply to these materials). Through examining treaties, federal statutes, and case law, students will deepen their understanding of both international law and federal constitutional law. We will be spending many class periods discussing issues of jurisdiction, which will also strengthen students grasp on basic questions of federalism as well as family law, criminal law, environmental law, and property law. Through working on a research paper, students will learn how to construct and develop a thesis. This exercise will improve both writing and research skills. By presenting their papers, students will improve oral presentation skills.

 Laptops and Other Distracting Digital Devices: Thank you for leaving laptops at home or in your lockers. Likewise, please put your cell phones on airplane mode and tuck them away. If you need to take an emergency call, please have your call on silent/vibrate and step out of the room to answer. As slight recompense for banning digital devices, I will provide audio recordings of all classes shortly after class each day. On days when I use powerpoints or other visual materials, I will also provide those to you (but not until after class).

Course Requirements

Class Participation: Class participation will count for 10% of your grade. Participation includes attending and being prepared for class as well as contributing to class discussion.

 Attendance Policy: Class attendance is required. Students who miss more than two classes without adequate cause may be dropped from the course. University policy states: “Students may be justifiably absent from classes due to religious observances, illness documented by a physician or other appropriate health care professional, conflicts with university-sanctioned activities documented by an appropriate university administrator, public emergencies, and documented personal or family emergencies. The student is responsible for notifying the instructor in writing with as much advance notice as possible. Instructors may determine a reasonable amount of coursework that should be completed in order to make up for the student’s absence. Students are responsible for the prompt completion of any alternative assignments.”

 Papers and Exam: Your grade in this class will be based upon class participation (10%), a research paper (25%), peer review exercise (5%), and a final exam (60%). For the writing assignment, you will each research an area of Federal Indian Law and prepare a short paper to be shared with your classmates. Each of you will have 15 minutes of class time to discuss your topic with your classmates in November. We will go over this assignment in detail during the first week of classes, and I will suggest paper topics.

Grading Policy: Below is the general grading policy for the law school, which I follow. I will provide you with detailed guidelines for your research paper and peer review assignments, explaining the objectives of the assignment as well as how it will be evaluated.

A         Superior work that is significantly better than the normal range of performance expected

A-        High quality work that is better than the normal range of performance expected

B+       Professionally qualified work that is at the high end of the normal range of performance expected

B         Professionally qualified work within the normal range of performance expected

B-        Professionally qualified work at the low end of the normal range of performance expected

C         Professionally qualified work at the lowest end of the normal range of performance expected

D         Work deemed acceptable for academic credit but below the normal range of performance expected

F          Work not worthy of academic credit

Accessibility Resources: Information on the Law School’s Policy and Guidelines for Law Students with Disabilities can be found at: http://www.law.buffalo.edu/current/studentServices/disabilities.html. If you have any questions or wish to seek accommodations, contact Vice Dean for Student Affairs Melinda Saran.

 Code of Conduct: All SUNY Buffalo Law students are subject to the requirements and policies of the Code of Conduct, including those regarding academic conduct. The Code can be found at: http://www.law.buffalo.edu/current/academicPolicies/conduct.html. I take a strict line on plagiarism and will be running your papers through SafeAssign or some equivalent plagiarism checking software.

Make-ups and Late Assignments:

Class Website: This class has a devoted website where I post class materials and where the class recordings magically appear shortly after class. I prefer using this website to using UBLearns (which has given me trouble in the past). I encourage you to bookmark the page and check it frequently or set up an RSS feed. You can find the site at : fedindianlaw.classcaster.net

 Texts: All assignments are in Anderson, Berger, Frickey & Krakoff, American Indian Law: Cases and Commentary, 3rd Edition 2015. I know that this is an expensive book (sorry!), so look for used copies early. I also have one copy that I will put on reserve in the law library. The study guide that I have found helpful is William C. Canby, Jr., American Indian Law in a Nutshell (Get the 6th edition.) I believe this is in the bookstore as a recommended or suggested text, but it is by no means required. A helpful treatise is available on Lexis or in the library: Cohen’s Handbook of Federal Indian Law (2012 Edition).

The reading assignments below are subject to change. Specifically, the dates for the student presentations (and the number of students in the class and thus making presentations) are not yet confirmed. Also depending on the topics chosen for presentation, we may skip over some of the currently slotted topics. Finally, I apologize again for the need to cancel our first session. I have included a “make up” class at the end of the semester. We may choose to schedule this earlier and that would shift the reading assignments. I will circulate revised syllabi as needed.

 

Class 1: Monday

09/12/16

Introduction, Origins of Federal Indian Law: Colonial Era 1-28
Class 2: Wednesday

09/14/16

Revolutionary Era. Johnson v. M’Intosh

Trade & Intercourse Era, Removal Era: Cherokee Nation v. Georgia

28-63
Class 3:

Monday

09/19/16

Origins Continued: Removal Era Worcester v. Georgia

Experiments in Federal Indian Policy: Reservation Period

63-91
Class 4:

Wednesday

09/21/16

Reservation Period to Allotment: Ex Parte Kan-Gi-Shun-Ca (Crow Dog), Kagama, Lone Wolf v. Hitchcock 91-120
Class 5:

Monday

09/26/16

Treaty Rights: Winans

Indian New Deal, Termination, Self-Determination

Lac Du Flambeau v. Stop Treaty Abuse

120-163
Class 6:

Wednesday

09/28/16

Federal Power: Constitutional Limits

Menominee v. U.S., Dion, Reich v. GLFWC

 

165-192
Class 7:

Monday

10/03/16

Constitutional Limits Con’t: Morton v. Mancari, Rice v. Cayetano, Tee-Hit-Ton Indians 192-218
Class 8:

Wednesday

10/05/16

Constitutional Limits Con’t: U.S. v. Sioux Nation

Breach of Trust: Mitchell I & II and Cobell

 

218-249
Class 9:

Monday

10/10/16

Defining Tribe: U.S. v. Sandoval, Passamaquoddy Tribe v. Morton, Mashpee

Indian Country:  Solem v. Bartlett,

251-287
Class 10:

Wednesday

10/12/16

Indian Country Cont.: Alaska v. Venetie

Land Claims,: Oneida, Sherrill

287-307
Class 11:

Monday

10/17/16

Criminal Jurisdiction 307-320
Class 12:

Wednesday

10/19/16

Tribal Sovereignty: Talton v. Mayes, Wheeler, Santa Clara Pueblo 321-353
Class 13:

Monday

10/24/16

Tribal Sovereign Immunity: Bay Mills, Halona v. MacDonald, Nutongla Sanchez v. Garcia, Husband v. Wife 353-389
Class 14:

Wednesday

10/26/16

State-Tribal Struggles Over Jdx: Williams v. Lee, Warren Trading Post, McLanahan

Public Law 280: Bryan v. Itasca County

391-424
Class 15:

Monday

10/31/16

State Authority in Indian Country: Washington v. Colville, White Mountain Apache, New Mexico v. Mescalero Apache, California v. Cabazon Band 424-453
Class 16:

Wednesday 11/02/16

State Authority in Indian Country: Rice, Cotton Petroleum

Indian Gaming: Rumsey Indian Rancheria v. Wilson, In re Gaming Related Cases, Colorado River Tribes

GROUP ONE DRAFT PAPERS DUE

453-486
Class 17:

Monday

11/07/16

GROUP ONE PAPER PRESENTATIONS (4 students)

GROUP TWO DRAFT PAPERS DUE

Read group one papers (Peer Review)
Class 18:

Wednesday

11/09/16

GROUP TWO PAPER PRESENTATIONS (4 students)

GROUP THREE DRAFT PAPERS DUE

Read group two papers (Peer Review)
Class 19:

Monday

11/14/16

GROUP THREE STUDENT PRESENTATIONS (4 students)

GROUP FOUR DRAFT PAPERS DUE

Read group three papers (Peer Review)
Class 20:

Wednesday

11/16/16

GROUP FOUR STUDENT PRESENTATIONS (1 or 2 students)

Indian Child Welfare Act: Mississippi Band of Choctaw Indians v. Holyfield, Adoptive Couple v. Baby Girl

Read group four papers (Peer Review)

486-520

Class 21:

Monday

11/21/16

Tribal Jurisdiction over Nonmembers: Oliphant, Montana v. US, Merrion v. Jicarilla Apache, Brendale 521-556
Class 22:

Monday

11/28/16

Tribal Jurisdiction over Nonmembers Continued: National Farmers v. Crow Tribe, Iowa Mutual Ins. v. LaPlante, Strate 556-574
Class 23

Wednesday

11/30/16

Tribal Jurisdiction over Nonmembers Continued: Atkinson Trading Co, Nevada v. Hicks, Plains Commerce Bank 574-594
Class 24

Make up session TBA

Tribal Jurisdiction over Nonmembers Continued: Duro, Lara 594-627

 

 

FINAL EXAM: There will be a scheduled in-class open book exam, which means you can consult your text book, class notes, and anything you have personally prepared. You may work together on outlines, but do not simply borrow a friend’s outline. No commercial outlines or treatises (Cohen’s or the Nutshell).