Colin Osiecki, Can Tribal Courts Issue Domestic Relations Orders that Will Be Honored by Pension Plan Administrators under ERISA?, 108 Nw. U. L. Rev. 711 (2014).

Many members of tribal nations hold assets in pension plans governed by the Employee Retirement Income Security Act (ERISA). When a tribal member with such a plan divorces, the plan must be divided between the former spouses according to a marital-asset division order issued pursuant to state law. A 2011 Department of Labor Advisory Opinion opined that this order must be issued either by a state court or a tribal court in a state that recognizes such orders as state law. This Note argues that this Advisory Opinion is flawed. ERISA simply requires an application of a specific body of law; it says nothing restricting the forum to state courts. Many tribal judiciaries have available to them choice of law statutes, and the martial-asset division orders they issue pursuant to state law should be honored. This is a matter of convenience for the tribal member and a matter of a tribe’s sovereignty to order its own internal domestic relations as it sees fit. 

Ana Condes, Man Camps and Bad Men: Litigating Violence Against American Indian Women, 116 Nw. U. L. Rev. 515 (2021).

The crisis of sexual violence plaguing Indian Country is made drastically worse by oil-pipeline construction, which often occurs near reservations. The “man camps” constructed to house pipeline workers are hotbeds of rape, domestic violence, and sex trafficking, and American Indian women are frequently targeted due to a perception that men will not be prosecuted for assaulting them. Victims have little recourse, facing underfunded police departments, indifferent prosecutors, and a federal government all too willing to turn a blind eye to the ongoing violence.

Timothy J. Droske, The New Battleground for Public Law 280 Jurisdiction: Sex Offender Registration in Indian Country, 101 Nw. U. L. Rev. 897 (2007).

This Comment will show that political agreements are the ideal method for tribes and states subject to Public Law 280 to address the jurisdictional gap revealed by Jones in States' sex offender registries. In doing so, this Comment will analyze the agreements developed between the Minnesota Attorney General and the Minnesota tribes after the Jones decision, arguing that they can serve as an effective model for other states and tribes as they attempt to resolve this important issue.

Kathleena Kruck, The Indian Child Welfare Act's Waning Power After Adoptive Couple v. Baby Girl, 109 Nw. U. L. Rev. 445 (2015).

In the 1970s, state authorities began removing Indian children from their homes by the thousands and placing them into foster care, institutional housing, and with white families. To counteract this forced assimilation, Congress passed the Indian Child Welfare Act (ICWA) in 1978. The ICWA conferred many powers previously held by the states to tribal courts and created a preference for Indian children to be placed with their extended family, other members of their tribe, or other Indian families. Despite congressional efforts, the practice of removing Indian children from their homes still persists. Many states resist the ICWA through judicially created exceptions to its application. Other states reject these exceptions and apply the ICWA more broadly. Confusion about the scope of the ICWA’s authority came to a head in Adoptive Couple v. Baby Girl, decided by the Supreme Court in June 2013. This Note considers Adoptive Couple against the backdrop of the tug-of-war among tribes, states, and the federal government and attempts to define the boundaries of authority within the context of the ICWA. Part I describes the condition of state and tribal relations leading up to Adoptive Couple. Part II provides an analysis of Adoptive Couple. Part III explores the implications of this decision and concludes with proposed legislation to clarify, and consequently preserve, the power of the ICWA.

Matthew L.M. Fletcher, Muskrat Textualism, 116 Nw. U. L. Rev. 963 (2022).

The Supreme Court decision McGirt v. Oklahoma, confirming the boundaries of the Creek Reservation in Oklahoma, was a truly rare case in which the Court turned back arguments by federal and state governments in favor of American Indian and tribal interests. For more than a century, Oklahomans had assumed that the reservation had been terminated and acted accordingly. But only Congress can terminate an Indian reservation, and it simply had never done so in the case of the Creek Reservation. Both the majority and dissenting opinions attempted to claim the mantle of textualism, but their respective analyses led to polar opposite outcomes.

Joseph William Singer, Sovereignty and Property, 86 Nw. U. L. Rev. 1 (1991-1992).

Since the Oliphant decision in 1978,  the Supreme Court's attack on Indian sovereignty and property has expanded and deepened. This past year has seen further significant attacks on tribal sovereignty and religion. Yet from reading the language of the Court's opinions, one would have no idea that anything had changed. The Court presents the recent cutbacks on tribal rights as the straightforward application of settled precedent. Nothing could be further from the truth. If the Court were honest about the law in this area, it would be an occasion for shame.

The issues in these recent cases are complicated, as is the history of relations between the United States and American Indian nations. Yet they teach us a great deal about both the social meaning of property rights and about the just and unjust exercise of governmental power. Indeed, a close analysis of the reasoning in these cases reveals alarming insights. It also places in doubt some of the most cherished truisms about the meaning of private property in America.