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Indian Law Courses

The UNM School of Law offers a variety of courses on Indian law. Since not all courses are taught every semester, students are advised to plan their schedules carefully to accommodate courses of particular interest.

  • A = offered every semester
  • B = offered one semester every year
  • C = offered every other year
  • D = offered when student interest and faculty availability allow

Conflicts of Indian Law

This variable-credits seminar focuses on conflicting assertions of tribal, federal, and state authority affecting Indian tribes in Indian country. The objective of the seminar is to facilitate a deeper understanding of the origins, essence, and trajectory of current doctrine and theory defining the scope and limits of tribal, federal, and state power in Indian country. Special attention is paid to the emergence and dominance of the discrete but related concepts of the "implicit divestiture" of tribal sovereignty, state infringement of tribal self-government, and federal preemption of state authority in Indian country. Supreme Court cases addressing these concepts will be examined in detail, with students assigned to initiate discussions of cases on a rotating basis. Occasionally, important articles by Indian law scholars and other commentators also may be assigned.

There are no exams for this seminar. Instead, the seminar entails two writing components: (1) a midterm paper tracing and critically evaluating the development of the doctrines of state jurisdiction in Indian country, as covered in class; and (2) a mock Supreme Court opinion reversing an assigned actual or hypothetical lower court decison regarding tribal jurisdiction in Indian country, due at the end of the semester. Grades are based on the quality of students' written work and classroom participation.

To enroll in the course, students must have taken Indian Law previously, or be concurrently enrolled in Indian Law, or else have obtained the professor's permission based on significant previous Indian law-related work or study.

Please see instructor for course description.

Economic Development in Indian Country

Native peoples' cultural survival depends upon economic development. As more and more Native Americans must leave their communities to feed their families, it is increasingly difficult to maintain and develop cultural strengths. But tribal economic development is not easy, particularly in the midst of sometimes hostile state and local actors. Moreover, done poorly, tribal economic development can destroy the very values Native peoples' seek to protect. In this class we will explore how tribes and their citizens can promote economic development while safeguarding important cultural values.

This course will be a very practical, interdisciplinary course that aims to explore economic development in Native communities from the perspective of "indigenous planning," an emerging theory of action among tribal community planners focusing on land tenure and culture as they relate to community development. Graduate students in Planning and Law will work together to understand indigenous planning and the legal framework within which development in Native communities occurs. Students will work on interdisciplinary teams, each developing a case study and explanatory materials on an economic development project in a Native community. Students will be required to prepare materials and one or more presentations to tribal groups about the issues and possible strategies to address them.

A warning: this will not be a typical, read-and-discuss, seminar. Members of the class will often be required to work independently of the professors, to seek out appropriate materials and information, and to figure out how to make their conclusions and recommendations accessible to non-lawyers. Because real people, struggling with real problems, will rely on the work produced, the expected standard will be unusually high.

Federal Jurisdiction

This course concerns the proper place of the federal courts in a federalist system. The nature of federal judicial power, its relationship to federal and state legislative power, and its relationship to state judicial systems are analyzed. The civil rights case is the primary vehicle for this analysis. The course also examines the relationship of tribal judicial systems to federal and state courts.

Please see instructor for course description.

Please see instructor for course description.

Indian Civil Rights

This course analyzes the nature, scope and limitations of civil rights in Indian Country. As a dual-citizen with a distinct political relationship with a tribal government and the United States government as separate sovereigns, the individual Indian occupies a unique position in civil rights law. Students will examine the emergence of civil rights protections for individual Indians and discuss their enforcement in federal, state and tribal courts. We will identify the constitutional and statutory protections afforded to Indians and non-Indians and evaluate their impact and efficacy for Indians in state/federal and tribal forums and non-Indians in tribal courts. Materials will address the foundational questions of equal protection, due process, religious freedom, and protection from harm at the hands of the government for Indians on and off the reservation.

The course examines the power and limitations of the United States to adequately protect the civil rights of Natives under its own constitution, as well as the Indian Civil Rights Act of 1968 (ICRA) as a vehicle to protect the rights of individual Indians vis-a-vis their tribe. Depending on the instructor, focus areas may include federal/state/tribal Indian civil rights actions in religious freedom, education, speech, gender, identity, enrollment and status, police action, and prisons.

The class also examines the tribal role and response to ICRA, including the development of tribal infrastructures, common law and remedies to protect its citizens. Throughout the course, students will be challenged to revisit the so-called tension between individual rights and tribal collective rights and generate a discussion on tribal self-determination, good governance, and human rights.

Course Objectives/Expected Outcomes:

The goal of the course is to review civil rights in the tribal/federal context and to inquire whether federal/tribal civil rights laws work for Indian peoples. The course raises questions about civil rights protections, abuses, enforcement mechanisms, and remedies for tribal peoples. One objective of the course is to assist students in evaluating protections and remedies afforded to tribal peoples to challenge laws and governmental conduct that violate the United States Constitution or the Indian Civil Rights Act or both. Students will critically review civil rights issues in an Indian law context and develop frameworks, perspectives and responses to better protect Indian individual rights and include the tribe and tribal community interests.

Major Assignments/Method Of Evaluation & Assessment:

Evaluation

  • Attendance and Participation
  • Short Written Assignments on Reading Materials and Emerging Issues
  • Final Oral and Written Presentation
  • Or Final Examination

Indian Gaming

This course examines the various legal and political issues facing the enterprise of Indian gaming. The course materials will include the Indian Gaming Regulatory Act, applicable regulations, selected gaming compacts, and the leading cases.

Indian Law

This course examines the power of the Indian tribes and the relationships among tribes, states, and the United States. Emphasis will be given to jurisdictional interfaces and conflicts among the three sovereignties.

Indian Tax

Course Description

This course deals with problems of tribal, state, and federal taxation within Indian country. The first half of the semester involves general reading of the leading cases. The second half of the semester involves a set of transactional problems and the tax consequences that flow from those problems.

Indian Water Law

Indian Water Law will explore the jurisprudential origins of the role of Indian tribes as governments, and tribal entitlements in property and land. After a review of the historical under-pinnings of tribal sovereignty, the course will explore contemporary issues confronting tribes and pueblos relating to the development and use of their waters. This aspect of the course will develop a working knowledge of the Winters doctrine, quantification of Indian water rights, and finally the potential environmental and economic development solutions that may be integrated into global water right settlements.

Indian Children, Youth and Families Law

This course will examine Indian child welfare matters, including the analysis of federal policies and the impact on Indian families and community; the Indian Child Welfare Act and tribal, state, and federal law. In addition, the course will provide an overview of issues concerning Native American youth and families from an Indian community perspective. Special emphasis will be given to resolving family disputes using case law, family conferencing and traditional dispute resolution models.

International Law and Indigenous People

This course will cover the basic international law frameworks, instruments, and emerging norms that apply to indigenous peoples. After the basic principles of international law, including customary law, the course moves to indigenous peoples as the subjects and objects of international understandings. Indigenous peoples are acting to change the established norms, going beyond the formalized states of prior relations among nations to recognizing peoples, political entities who are not just another ethnic minority. The course will cover the emerging norms and their formalization including the International Labor Conference Convention 169 (ILO 169) and the United Nations Working Group on Indigenous Populations, Draft United Nations Declaration on the Rights of Indigenous Peoples (UN Draft Declaration). For the comparative scope, we will study laws and cases that (1) invoke the international law to protect the rights of indigenous peoples; and (2) how respective states use and do not use international law in matters involving indigenous peoples within their boundaries. The latter includes cases from Canada, Australia, New Zealand, and other states.

Note: Indian Law (any Indian Law course) is recommended as prior coursework. Students without any Indian Law should talk to the instructor regarding a background reading to be completed prior to the start of the course. Prior international law coursework will be helpful.

International Advocacy for Indigenous Peoples

This is a two-credit seminar that will critically examine specific current international law developing and affecting the rights of indigenous peoples. It is intended to look closely at major studies, findings, recommendations, and emerging international law in respect to indigenous peoples, in specific areas including, discrimination, self-determination, and intellectual property and protection of indigenous knowledge. The seminar is intended to examine the major issues in depth and to stimulate discussion regarding the developing law, and its use in advocacy for indigenous peoples in the US. The seminar will also consider issues raised by indigenous peoples at the international level including, repatriation, border issues, universal jurisdiction, and others that arise for indigenous peoples as international law norms affect indigenous communities, such as conflict of human rights norms with tradition. Advocating human rights domestically and use of international law in advocacy by Indian nations within the nation state will be considered. Discussions will focus specifically on international advocacy for indigenous peoples in the US, including the challenges to such advocacy and the impact on indigenous peoples, within the US context. International Law and Indigenous Peoples and/or Federal Indian Law are useful for this course, but not required.

Jurisdiction in Indian Country

This course explores core doctrinal developments in the field of federal Indian law, paying close attention to Supreme Court decisions bearing on the scope of tribal and state governing authority in Indian country. We will study the Court's cases chronologically, endeavoring to follow the historic development of two overarching doctrinal themes: (1) federal preclusion of state authority in Indian country (including the modern preemption and "infringement" theories); and (2) federal recognition of the extent and limits of inherent tribal sovereignty (including the "implicit divestiture" theory). We first will examine closely the full majority opinions and selected and edited concurring and dissenting opinions from the early Indian law cases of the John Marshall Court, with a view toward discerning how these opinions either foreshadow or clash with later doctrinal developments. We then will critically examine the subsequent cases that elaborate the state-power and tribal-power doctrines indicated above. To aid us in our study, we occasionally may supplement our reading of the Supreme Court's Indian law cases with articles by Indian law scholars and other commentators.

Law of Indigenous Peoples

This course provides a historical and a contemporary perspective on the internal law of Indigenous peoples, domestically and internationally. It is not a survey of the law; rather it provides a general introduction to the types of law by which Indigenous peoples govern themselves, as well as a format to discuss the development and effect of this law. This course is intended to familiarize students not only with traditional and contemporary aspects of the internal law of tribes, but also to consider the complex interrelationship between the two. The tremendous influence exerted by outside forces on the internal law of Indigenous peoples will also be considered in a critical manner.

Student Course Work - Tribal Profile

Students will be required to consider the internal laws of a tribe selected by the student and create a profile of the tribe's laws following the course outline. It is strongly recommended that the student choose his/her own tribe or a tribe with whom the student has a working relationship with or can develop a working relationship with, including a tribe the student may work with in the future or has worked with in the past. Students will be expected to add to the course materials as designated on the course syllabus. At the end of the semester, students will exchange the information gathered with appropriate appendices, notes and comments. The purpose of this project work is to allow students to consider the internal laws of one tribe in conjunction with the broader discussion that will take place in class. Students will be expected to share their observations based on the analysis and consideration of the internal law of their selected tribe as the semester progresses.

Paper Requirement

Students will be required to produce a research paper for the course. The paper is required to be at least 20 pages in length. The paper may be used to meet the writing requirement with my prior approval. The paper may be related to the tribal profile created by the student, but may also cover an unrelated subject.

Course Materials and Recommended Books

The course materials will be provided for you through the copy center. In addition, I will provide you with a list of the books I recommend. Many are the books from which we will be using excerpts. I recommend you obtain these books through amazon.com or other such service.

Class Schedule

The syllabus covers Monday classes. Any overflow from discussions we may not have completed will continue on Thursdays. The extra hour each week will also be used to facilitate student writing of tribal profiles and profiles. I also expect to meet with each of you throughout the semester and this hour will be used for these meetings.

Native American Rights

The course examines legislation, regulation, treaties, and case law that govern Native American rights. Specific individual and tribal nation rights, as traditional and emerging issues, are studied in a focused manner. Besides legal materials, history as a scholarly discipline and as a legal tool will be covered.

Please see instructor for course description.

Native Land Rights and Claims

Course Description

Land is at the heart of most Native peoples’ lives, continued vitality, and cultural survival. For most Native peoples in the United States, land is also the heart of sovereignty -- Native peoples' abilities to govern themselves and their homes -- and spirituality. This course examines the U.S. legal regime that developed around ownership of Indian lands, compensation for forced acquisition of those lands, and recovery of their title and use by their Indian owners. Specifically, the course will cover aboriginal title (both tribal and individual), recognized title (including treaty title), the Indian Claims Commission process, and more recent efforts at land recovery and/or compensation, including the prosecution of human rights claims in international forums.

Instead of the usual broad survey of Indian land claims issues, this experimental course will use a single currently active land claim, that of the Western Shoshone Nation, as a lens through which to study the subject. The Western Shoshones’ claim to most of the state of Nevada has been in litigation and negotiation for more than five decades, continuing to the present time, and has included most of the important Indian land claims issues. Attorney Thomas E. Luebben, who will co-teach the class, has represented Western Shoshone tribes and organizations for the last thirty years, including Mary and Carrie Dann, defendants in the phase of the claim that reached the U.S. Supreme Court.

The course will meet weekly in a seminar format, with a significant amount of interesting reading required. During the latter part of the class, students (either alone or with a partner) will draft a complaint, a motion for summary judgment, a motion to dismiss, or a similar pleading on a current legal issue or claim in the Western Shoshone dispute. The instructors will choose the specific topics and students will be assigned to represent either a Shoshone or opposing party in the dispute. The class will culminate in students’ oral arguments of the motions.

Grading will be done on the basis of class participation, the written assignment, and the oral argument.

Natural Resources: Indian Country

Course Description

This course addresses issues of ownership, regulation, and jurisdiction that arise in the unique context of the management of natural resources in Indian country. Specific topics include ownership of land and water resources on Indian reservations; land use and environmental protection in Indian country; taxation of natural resources in the reservation setting; federally reserved Indian water rights; and off-reservation Indian hunting, fishing, and gathering rights. To enroll in this course, students must have taken the basic introductory Indian Law course or have obtained special permission from the instructor.

Pueblo Indian Law

The course will cover the major developments in law and policy toward the Pueblo Indians by Spain, Mexico and the United States from a critical perspective. Students will gain a historical perspective of the impacts of law on the Pueblos and its relationship to present treatment and emerging challenges.

Please see instructor for course description.

Tribal Courts

This course will explore the many facets of tribal courts in the United States, ranging from historical origins to the modern day operations of tribal courts. Among the topics will be the inherent power of tribal courts, judicial independence, separation of powers within tribal government, inter-tribal appellate courts, and the interplay among federal, state, and tribal courts. We will also analyze the fundamental characteristics of tribal courts and their function in the context of cutting edge cases involving jurisdictional issues, Indian civil rights, the use of tribal custom and tradition, criminal law, torts, and consumer law.

Please see instructor for course description.

Please see instructor for course description.