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The \u27Second Wave\u27 of Spanish Clinical Legal Education: Empirical, Pedagogical, and Institutional Lessons for a Pilot Course and Program at the University of Granada
Get PDFSpanish clinicians today benefit from the ‘first wave’ of early adopters. We also benefit from decades of clinical scholarship—most recently about the Western European and global clinical legal education movements—and empirical data on what lawyers actually do and need in practice. In this article, the authors summarize key empirical, pedagogical, and institutional lessons to ground the creation of a pilot course and program at the University of Granada
WildEarth Guardians v. United States Bureau of Land Management
Get PDFIn WildEarth Guardians v. U.S. BLM, the District Court of Colorado showed that economic and developmental uncertainty is an area where agencies are given broad discretion in deciding whether an impact is reasonably foreseeable and requires a further conformity analysis under the Clean Air Act. This case exemplifies the tactical limitation of using climate change and the science around it to force greater analysis of projects undertaken by federal agencies. However, the court presented a potential roadmap for successful future challenges
Tribal Nations and Congress\u27s Power to Define Offences Against the Law of Nations
Get PDFThe Framers of the Constitution founded the United States on a principle that the federal government has limited, enumerated powers. This Article advances the Offences Clause as an additional, and important, source of federal authority in Indian affairs, particularly for the Indian Child Welfare Act. There is considerable evidence that the Offences Clause was intended to authorize Congress to regulate relationships with tribal nations as well as foreign governments. This Article puts forth the Offences Clause as a response to the challenges raised by Justice Thomas and the State of Texas, including concerns about racial classification or overreach of commerce clause authority
Enough Is Enough : Ten Years of Carcieri v . Salazar
Get PDFTen years ago, the United States Supreme Court issued its watershed decision in Carcieri v. Salazar, landing a gut punch to Indian country. Through that decision, the Supreme Court upended decades of Department of the Interior regulations, policy, and practice related to the eligibility of all federally recognized tribes for the restoration of tribal homelands through the Indian Reorganization Act (IRA) of 1934. The Court held that tribes must demonstrate that they were “under federal jurisdiction” in 1934 to qualify for land into trust under the first definition of “Indian” in the IRA. Carcieri has impacted all tribes by upending the land-into-trust process and requiring tribes (and Interior) to spend scant resources to establish statutory authority for trust land acquisitions, a burdensome task that had previously been straight forward. In addition, Carcieri has complicated, if not prevented altogether, trust acquisition for tribes who face difficulty in making the requisite jurisdictional showing.
This Article provides the first comprehensive analysis of the last ten years of Indian law and policy that have unfurled from the Supreme Court’s decision. It describes how Carcieri has been weaponized by states, local governments, citizens’ groups, individuals, corporations, and even other tribes, to challenge the exercise of tribal sovereignty through the acquisition of tribal lands, and, at times, the very existence of Indian tribes.This Article details the litigation that has since ballooned, illustrating the dangerous scope creep of Carcieri, while categorizing and evaluating the underlying claims. It also looks to the future, and concludes that, while unlikely, a universal, clean congressional fix is the only real solution. The last ten years of litigation, hearings, and never-ending debate demonstrate that Carcieri is not a constructive or appropriate framework for resolving larger policy questions about the land-into-trust process. Finally, the Article ends by providing practice tips for tribes navigating the current Carcieri landscape
Mitigating Malheur\u27s Misfortune: The Public Interest in the Public\u27s Public Lands
Get PDFThe Article begins its inquiry with an in-depth look at the forty-one-day long standoff between armed militants and law enforcement officials at Malheur, which means misfortune in French. The occupation of the Refuge ended with one death and the prosecution of over two dozen individuals for trespass, destruction of government property, conspiracy, and related charges. It all began when the Hammonds, who held grazing permits on Bureau of Land Management ( BLM ) land adjacent to the Refuge, were prosecuted for starting fires on federal land.1 The Hammonds\u27 conviction for the incident might have been the end of the story, but another notorious ranching family from Nevada, the Bundys, stepped in with their own deep-seated call-to-arms against the federal government. The Bundys\u27 message resonated with other Sagebrush Rebels and members of the Patriot Movement. The result: one of the most pivotal events in the ongoing struggle over access and control of U.S. federal public lands. Part I of this Article addresses the historic and cultural context of private interests in federal public lands and resources, using Malheur, the Badger Two- Medicine, and the Sugar Pine Mine as examples. Part II illustrates the federal government\u27s constitutional authority for management of public lands and resources and for oversight of private claims to them. Part III discusses the federal statutes and regulations that govern private claims to public rangeland and minerals and reveals the deficiencies of such claims. Part IV goes beyond the letter of the law to tease out the socio-economic subtext underlying the tenaciousness and fervor of private claims. The heart of the Article is found in Part V, which examines the public\u27s interest in federal public lands and the government\u27s responsibility to protect the public\u27s interest. Drawing lessons from over a century of both public lands law and water law, Part V reframes the conversation in a way that weaves the public interest into the myriad assertions of private rights. It considers the intersection of the public interest and the Public Trust Doctrine ( PTD ), which is an ancient common law doctrine that safeguards public access to certain public lands and resources. The analysis shows that, while the doctrines are distinct, they gain strength, depth, and breadth from each other. The PTD is valuable tool for informing the public interest standard and for conceptualizing, implementing, and constraining management discretion. The public interest standard, as informed by the PTD, becomes a robust means of managing private rights and conserving public lands and resources. Finally, the Article concludes with an optimistic, but realistic, message of convergence, where public interest factors coupled with PTD duties combine to direct decision makers, the public, and the judiciary to demand sustainable uses of federal public lands and resources through the issuance, renewal, and termination of permits, licenses, and leases
From the Coils of the Anaconda, Restriction of Constitutional Amendment by Popular Initiative in \u3cem\u3eMontana Association of Counties v. State\u3c/em\u3e
Get PDFThis note examines the ways in which Montana Association of Counties concerns Montana law, elections, and history. While it is now nearly futile to suggest any regulation of campaign speech based on the speaker\u27s corporate identity, it is possible to limit the influence of outsiders on the political process and fundamental text of the state. Part II discusses the historical development of the statutory initiative and referendum regime that existed under the 1889 Constitution and tracks its transition to the constitutional amendment by popular initiative process that emerged as part of Montana\u27s 1972 Constitution. Part III describes the factual background, holding, and dissent of Montana Association of Counties. Part IV provides analysis of the separate amendment rule as articulated by the Court. Part V explains how invalidating a constitutional initiative supported by a majority of the electorate serves to protect the citizens of Montana from the pervasive influence of outside interests, but in doing so also runs the risk of blocking future generations of Montanans from enacting meaningful reform to their own Constitution
PREVIEW; McCoy v. Salish Kootenai College, Inc.: \u3cem\u3eHow Far Does Sovereign Immunity Extend?\u3c/em\u3e
Get PDFThis case presents the issue of whether a tribal college, incorporated under the laws of the Confederated Salish and Kootenai Tribes and, subsequently, the State of Montana, may be considered an arm of the Tribe, thus benefitting from tribal sovereign immunity. The resolution of this issue will influence tribal jurisdictional questions throughout the state and the country. The Appellant, Stephen McCoy, asserts that the federal courts have federal question jurisdiction over his Title VII claims against Appellee, Salish Kootenai College, Inc. because it is not an arm of the Tribe and therefore is not immune from Title VII claims
Sierra Club v. Virginia Electric & Power Company
Get PDFThe Sierra Club alleged Dominion violated the Clean Water Act by allowing arsenic to leak from coal ash storage pits into state waters. The Fourth Circuit Court of Appeals found for the polluter, using a narrow definition of point source. Additionally, the Fourth Circuit deferred to agency interpretation of the polluter’s permit to find no violation occurred