American Indian Law Deskbook

By Hardy Myers; Clay Smith | Go to book overview

Foreword to Second Edition

As former North Dakota Attorney General Nicholas Spaeth wrote in the Foreword to the first edition of American Indian Law Deskbook, the objective of the Conference of Western Attorneys General has been to present a comprehensive and objective treatise in a difficult and controversial area. Since its publication in 1993, CWAG has issued annual supplements to ensure that the Deskbook remained current. This edition incorporates much of the annual supplement material but also restructures certain chapters to assist readers in identifying issues and locating relevant authority quickly and authoritatively.

Among the changes are a significantly expanded discussion of tribal sovereign immunity in Chapter 7 and reorganization of Chapters 9 and 10. The precise scope of tribal common law immunity from suit is assuming increasing importance as tribes expand their governmental activities and commercial relationships. Hunting and fishing issues continue to be a fertile source of controversy, but the variety of treaty, statutory, and factual contexts in which those controversies arise make any effort to synthesize and draw common elements from decisions an especially daunting task. Environmental regulation within Indian country has become entangled with jurisdictional questions as a result of congressional efforts to involve tribes in the regulatory process. The basic nature of those questions was visible at the time of the first edition's publication, but subsequent developments have crystallized, if not yet answered, them. The revised Chapter 10 both updates legal developments in this critical area and attempts to provide a better framework for understanding these developments across a broad range of statutory schemes with similar, yet not identical, approaches to accommodating the interests of states and tribes in the regulation of shared resources.

In those chapters that have not undergone major revision, we refined analysis in the light of five years of additional case law. So, for example, an issue not discussed in the first edition—the states' Eleventh Amendment immunity with respect to claims by tribes alleging failure to negotiate in good faith under the Indian Gaming Regulatory Act—became the focal point of much litigation under that statute. In another area governed by federal statute, child custody proceedings involving Indian children, no major doctrinal

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