We found a match
Your institution may have access to this item. Find your institution then sign in to continue.
- Title
Preserving Trust: Overruling Carcieri and Patchak While Respecting the Takings Clause.
- Authors
Gillespie, Noah Nehemiah
- Abstract
The potential benefit of new Bureau of Indian Affairs ("BIA") regulations for development on Native land has been overshadowed by two recent Supreme Court decisions-Carcieri v. Salazar and Match-E-Be-Nash-She- Wish Band of Pottawatomi Indians v. Patchak-which cast doubt on the title to Native land and dramatically expand the rights of nearby owners to sue by challenging Native use of that land under the Administrative Procedure Act ("APA"). Legislation that would amend the statutes the Court interpreted in Carcieri and Patchak could remedy these ill effects but would pose a new problem: the taking of a vested cause of action without just compensation. This Essay proposes that Congress enact appropriate legislation that both overrules the Court's interpretations of the relevant statutes and permits takings suits in place of suits under the APA, so that Native land remains securely under Native control. In addition, the BIA must harness the agency deference it deserves to set Native sovereignty at the center of federal Indian policy.
- Subjects
AMERICA; UNITED States; UNITED States. Bureau of Indian Affairs; LEGAL judgments; UNITED States. Supreme Court; CARCIERI v. Salazar (Supreme Court case); ETHNOLOGY; PUBLIC lands
- Publication
George Washington Law Review Arguendo, 2013, Vol 81, Issue 5, p1707
- ISSN
0016-8076
- Publication type
Article