Indian Law

Wisconsin is home to 12 tribal nations, each with its own unique history, culture, and government. As sovereign entities, these nations have the inherent right to create, enforce, and adjudicate laws to protect and enhance the well-being of tribal members within tribal territory. This authority is an intrinsic right that has been present since time immemorial.
However, under the mainstream conception of American law, tribal governments are often overlooked. This narrow perspective fails to acknowledge the significant contributions of
Continue Reading Exploring and Teaching Indian & Tribal Law

On June 15, 2023, the U.S. Supreme Court critically upheld the constitutionality of the Indian Child Welfare Act (ICWA) in a 7-2 decision written by Justice Amy Coney Barrett, in Haaland v. Brackeen.1

Indian community members, advocacy groups, and family law practitioners awaited the decision with bated breath since oral arguments concluded on Nov. 9, 2022.

The Haaland decision validates and protects adoption practices that preserve the heritage of Indian children. This decision further solidifies the relationship between
Continue Reading Implications of Haaland and the Indian Child Welfare Act

On Nov. 6, the United States Supreme Court heard oral arguments in Brackeen v. Haaland, a case which presented numerous constitutional and legislative issues regarding the Indian Child Welfare Act or ICWA.

The case presents some incredibly difficult legal and public policy issues. How difficult? In 2012, the late Justice Antonin Scalia called a dispute arising from the adoption of Native American twins the most difficult case he ever had during his time on the Supreme Court.

Continue Reading Competing rights and interests

Next week, November 5th and 6th, the Wisconsin Law Review will host a Symposium on the newly completed, Restatement of the Law of American Indians. This Restatement cements the foundational principles of American Indian law. Topics include federal/tribal relations, state/tribal relations, tribal jurisdiction and authority, and Indian Country business law.
The Restatement of the Law of American Indians (“the Restatement”) is the product of the largest collection of experts in federal Indian law ever assembled, working collaboratively over
Continue Reading WI Law Review Hosts Symposium & Podcast on New Restatement of the Law of American Indians

United States v. Cooley, USSC No. 19-1414, 2021 WL 2194835, 6/1/21, vacating 919 F.3d 1135 (9th Cir. 2019)

Cooley’s truck, parked on the side of a US highway running through the Crow Reservation in Montana, attracted the attention of a Crow Police Department officer. The officer said that when he approached the truck, he found Cooley “appeared to be non-native” and showed signs of intoxication; he also had two semiautomatic rifles on his front seat. The officer eventually
Continue Reading SCOTUS Holds Tribal Officer may Detain non-Indian on Reservation Roadway

That’s the title of this new publication by the Legislative Reference Bureau. The publication discusses the impact on Wisconsin of the U.S. Supreme Court’s decision in McGirt v. Oklahoma, USSC No. 18-9256 (U.S. July 9, 2020).

On Point didn’t cover the decision when it was released, but Scotusblog did, and its commentary (available here) characterized the decision as “a stunning reaffirmance of the nation’s obligations to Native Americans” because it could have the effect of restoring large
Continue Reading Wisconsin’s Indian Country after McGirt v. Oklahoma