The Federal Lawyer

April 2014

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Sovereignty Gravitas
The experience of tribal sovereignty and the manner in which it is exercised, the gravitas of sovereignty, is the best indicator of the future of Indian Country. While all tribes have the authority to govern, many may not have realized the gravitas of that sovereignty. Tribes can enhance gravitas and provide prosperity using a four pronged approach: a direct and personal relationship between the tribe and its members or citizens; more democracy and better data; transparent fiscal management; and targeted social welfare assistance programs.
Understanding the Supreme Court’s Decision in Adoptive Couple v. Baby Girl
The U.S. Supreme Court decision in Adoptive Couple v. Baby Girl addressed some fundamental questions about the rights of birth parents and families in the context of the attempted adoption of an Indian child by a non-native family. Only the second Indian Child Welfare Act (ICWA) case ever decided by the Court, the case will affect interpretations of the ICWA by federal and state courts for many years. As demonstrated by the decision on remand, there is a great potential for the case to be misinterpreted by lower courts and careful analysis of the Court’s opinion is vitally important.
Indigenous Energy Issues on an International Grid
Indigenous interests in energy and natural resources include a discussion on the a wide range of social and economic statistics. This article takes a step back to ask some leading questions about where there may be nexus points, or gaps, for community leaders, policy makers, and business advisors who work in the field to consider
Branding the Band: Protecting Tribal Identities Through Trademark Law
One day, mail service to a California Indian tribe suddenly ceased. The tribe ultimately uncovered a campaign of sovereign identity theft that serves as an eye-opening object lesson in the importance of protecting tribal trademarks.
Nothing Nefarious: The Federal Legal and Historical Predicate for Tribal Sovereign Lending
Indian tribes are exercising their sovereignty. They continue to provide for their citizens, using the resources available to them to subsist and build their economies. This is nothing new, yet, a controversy exists because some do not like one particular mechanism of tribes’ sovereign action—in this case making short-term, small-denomination loans to consumers around the country via the Internet. Some do not understand that tribal sovereigns are capable of good governance, that many tribes have in place robust civil regulatory consumer-protection regimes, or that tribes are able to provie quality service to treat consumers fairly and simultaneously generate revenues for the tribe.
The HEARTH Act: Transforming Tribal Land Development
President Barack Obama signed the Helping Expedite and Advance Responsible Tribal Homeownership (HEARTH) Act into law on July 30, 2012. Although it was a relatively straightforward piece of legislation, the act has the potential to transform the use of tribal lands across Indian Country. The historical development of U.S. policies governing leasing of Indian lands, as well as the longstanding requirement that the Secretary of the Interior approve leases of Indian lands, provide the proper context to discuss the HEARTH Act, its requirements, and the manner in which it has changed federal policies affecting Indian lands. However, two unresolved questions have arisen as a result of the HEARTH Act’s passage.
How Your Client Can Get an Evidentiary “Pass” For His Misconduct
The challenge of defending your client against charges of wrongdoing becomes monumentally more difficult when the plaintiff or prosecutor is permitted to introduce evidence that your client was previously sued or indicted for the exact same alleged misconduct. Those lawyers argue that under Federal Rule of Evidence 404(b), even evidence of mere prior allegations—not findings, admissions, or verdicts—proves your client’s knowledge of the law he allegedly violated. But in a recent decision with broad ramifications, the Ninth Circuit Court of Appeals rejected this argument and handed defense lawyers a bulwark to protect their clients against evidence of unproven prior allegations of wrongdoing, even where the evidence is offered only to prove the defendant’s knowledge and not his propensity to commit the act.
E-Discovery Special Master (EDSM) Program: Progress Update
In 2011, the U.S. District Court for the Western District of Pennsylvania became the first federal court in the nation to create an E-Discovery Special Master (EDSM) Program. After three years of implementation, the judges share the experience of lawyers, judges, and EDSMs who have participated in the program, the benefits received, “lessons learned,” and their expectations for the program going forward, for consideration by lawyers and judges from other jurisdictions.