This paper summarizes the topics and trends in Indian law confronted by courts in 2017. Designed as an update that will be useful to practitioners as well as scholars, the paper breaks the discussion down into more than forty topics and subtopics. For this paper, I tracked and read all 646 judicial opinions issued by state and federal courts that squarely decided questions of federal Indian law. From those cases I have distilled this update. Ideally the first in an annual collection.

The paper includes an empirical discussion of Indian law looking at which circuits and districts are presented with the most Indian law questions. It also examines what topics receive the most coverage providing a summary of more than 200 ICWA opinions as well as capturing obscure topics like the 4 cases decided on the Navajo-Hopi Rehabilitation Act. It captures important moments in Indian law like Justice Thomas dissenting from denial of cert. in a land into trust case but also highlights the return of Leonard Peltier to federal court.

I hope the user finds this comprehensive update a useful survey of Indian law in 2017.

Indian defendants appearing before tribal courts are not protected by the Bill of Rights. Instead, Congress enacted the Indian Civil Rights Act in 1968 to extend some, but not all, constitutional protections unto Indian reservations. Fifty years later and there continues to be extensive litigation surrounding ICRA.

This paper looks at all of the ICRA cases decided in 2017 to attempt to evaluate the merits of ICRA’s protections of tribal rights. The picture is decidedly mixed. From these cases the paper calls for three changes that directly respond to trends in civil rights litigation. 1) The paper suggests that courts expand the understanding of habeas jurisdiction to extend when an individual has been banished. It argues that banishment is a form of confinement and a restriction of liberty – albeit one where the jail cell is large, essentially the world minus the reservation. 2) Tribes must adopt codes that provide for a trial by jury and rules for determining who constitutes the jury and how it may be empaneled. While ICRA provides for a trial by jury, tribal courts have an affirmative duty to inform defendants of their right to request a jury trial. It is a violation of ICRA if the tribe does not make provisions for a jury when requested. 3) Finally tribal court judgments, when used in other forums, may be ambiguous because tribal law and tribal procedures are distinct from those followed by states or the federal system. Accordingly, any ambiguity that arises in response to a tribal court judgment should be resolved with a reference to the doctrine of lenity.

This article surveys thirty years of law review articles and compiles a formal ranking system to create a list of the 100 most influential Indian law scholarly pieces from the last thirty years. As Indian law has grown from a niche field offered by a couple schools to a robust legal discipline it is now impossible for the thousands of professors, students, practitioners, and judges to identify the most important pieces published each year. This piece, with its first of its kind approach to ranking Indian law scholarship, has the potential to not only highlight other important works but to become an article that is itself the focus of conversation.

In 2014 the United States Supreme Court added two new cases to the canon on the meaning of due process in the context of personal jurisdiction. These cases clarified the metes and bounds of specific and general personal jurisdiction. However, decisions that fit within the state and federal court system do not always easily have cross applications to tribal courts – which nonetheless are obliged to extend due process rights via the Indian Civil Rights Act. This article takes the Supreme Court’s 2014 decisions and discusses their potential application to tribal courts and their use within Indian Country.

The Model Tribal Secured Transactions Act was recently proposed by the National Conference of Commissioners on Uniform State Laws. This article takes the position that the model act, if adopted, will encourage economic development in Indian Country by creating a set of uniform rules which both non-Indians and Indians can utilize to promote lending. Critically – before it is widely adopted, this article implores the NCCUSL to consider including in the model act – language that would protect tribal cultural property; and in the absence of such language, encourages tribes to modify the act to accomplish this protection. The stakes include the potential loss of priceless real and personal, tangible and intangible, cultural property which itself form the linchpin of both tribal identity and cultural expression for many indigenous communities in the United States and beyond.

The Global Financial Crisis precipitated a condensing of capital and a fall in global equities markets that resulted not solely in the necessity of government bailouts of the financial industry but also exposed a number of Ponzi schemes that collectively will cost investors tens of billions of dollars. With a new wave of litigation by innocent investors against Ponzi scheme operators just beginning, and likely to take years, it becomes important to clearly identify the methodologies used to value the loss and allocate existing assets among remaining creditors. To that end I offer this article to argue that courts ought to use a comparatively new approach – the loss to the losing victim methodology originally pioneered in criminal law – to determine how equally innocent victims share the losses these schemes precipitated. By standardizing the calculation of loss to investors in both criminal and civil law, the courts will not only make the determination of loss considerably easier, but also more equitable.

Scholars of the Supreme Court often use a justice’s political ideology to predict their ultimate vote on Constitutional questions. While this approach may serve scholars well when questions involve hot button civil liberties issues that are the focus of confirmation hearings, ideology is in actuality a poor predictor of judicial behavior in other areas of law. This paper looks at one of the more complex – Federal Indian Law – and uses both descriptive statistics and more advanced quantitative analysis to go beyond the pure ideology and explain why individual Justices vote the way they do. Using the Fisher Exact Test, and a comprehensive new database of Indian Law decisions, I demonstrate that contrary to common expectations, factors like the Solicitor General’s participation are not significant in swaying an individual Justice’s vote, while factors like being the appellant party and certified questions of conflicting jurisdiction do statistically significantly alter an individual Justice’s vote on the merits. These factors provide better insight into the ultimate outcome – at a Justice level – of Indian law decisions before the Court, and can be used by parties to predict future Supreme Court outcomes on Indian law questions.