Denver University Law Review, 2011/01/01, Vol: 88, p423
civil procedure, energy utilities law, environmental law, governments, real property law, and transportation law
INTRODUCTION One of the schemes Congress enacted for settling the vast expanses of the western United States was to deed to railroad companies alternating one-square-mile parcels on each side of the planned railroad. 1 Subsequent sales of parcels helped fund railroad expansion, but also created a checkerboard of ownerships, sometimes including tribal sovereign ownership interspersed with private sections. 2 In these areas, Congress attempted to avoid checkerboard jurisdiction with respect to criminal enforcement 3 by adopting 18 U.S.C. � 1151, a criminal statute that extends U.S. federal jurisdiction over "Indian country." 4 Section 1151 defines "Indian country" to mean Indian reservations, dependent Indian communities, and Indian allotments. 5 In Hydro Resources, Inc. v. U.S. EPA (HRI III), 6 the Tenth Circuit concluded that land adjacent to "parcels held in trust for the Navajo by the United States" 7 was not a "dependent Indian community" under � 1151(b). 8 As described below, interpretations of � 1151(b) that disregard the word "communities" in the statute result in the same checkerboard jurisdiction that Congress sought to avoid. 9 Such interpretations impact tribal sovereignty by taking from Indian 10 communities the power to control the destiny of valuable natural resources on or under their land: for example, in the context of HRI III, uranium and drinking water. Part I of this Comment briefly describes past impacts of uranium mining on Navajo land, broad principles of Indian sovereignty, the mining process that Hydro Resources, Inc. (Hydro) proposed, the Safe Drinking Water ...
Denver University Law Review, 2006/01/01, Vol: 83, p1069
administrative law, civil procedure, contracts law, energy utilities law, environmental law, governments, international trade law, real property law, torts, and transportation law
It has been 175 years since Chief Justice John Marshall described the relationship of sovereign Indian tribes to the United States as "resembling that of a ward to his guardian" because tribes "look to our government for protection" and could "perhaps, be denominated domestic, dependent nations."n1 Fifty years after the Cherokee cases, this loosely-drawn analogy, originally based on treaty provisions pledging the protection of the United States to ensure the sovereign rights of certain tribes, had transmuted into the legal and historical fact of literal wardship. n2 In United States v. Kagama, n3 the Supreme Court upheld the constitutionality of an act of Congress extending the criminal jurisdiction of the United States over crimes committed by Indians against Indians within Indian country. n4 The power of Congress to govern Indian tribes in this fashion could not be located in any textual provision of the Constitution. Rather, the Court based such power on the "wardship" status of Indian tribes: These Indian Tribes are the wards of the nation. They are communities dependent on the United States, - dependent largely for their daily food; dependent for their political rights. They owe no allegiance to the states, and receive from them no protection . . . . From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them, and the treaties, in which it has been promised, there arises the duty of protection, and with it the power.n5 The ...
Denver University Law Review, 2007/01/01, Vol: 85, p79
criminal law procedure and governments
Federal sentencing is haunted by two sets of truths that, if not mutually exclusive, are at least difficult to reconcile. I. Individualized Sentencing One set of truths goes something like this: Individuals who commit crimes, like individuals who do not, are unique. They commit crimes for different reasons; they have different prospects for redeeming themselves or for doing it again; and prison time will affect people differently at different stages in their lives. Some crimes deserve more punishment than other crimes. And the effects of crime, whether on individual victims, communities or institutions, differ from crime to crime. First the President, then the Senate, devotes considerable time to ensuring that the federal judges empowered to sentence these individuals have the experience, intelligence and judgment to sentence them fairly. And each judge takes an oath to do just that. 1 Over time, trial judges charged with sentencing criminals day in and day out develop not just experience but expertise in their sentencing practices and in sentencing individuals within typically wide ranges set by Congress. Before imposing each sentence, trial judges also do something that no legislature, commission or appellate court can do: They hear from the defendants, and they sometimes hear from their families and from the victims of the crime as well, after which the judges must explain on the record why they sentenced the defendant the way they did. In the face of these realities, Congress, the United States Sentencing Commission and above all appellate judges ought to ...
Denver University Law Review, 2003/01/01, Vol: 80, p577
admiralty law, civil procedure, criminal law procedure, evidence, governments, and securities law
INTRODUCTION You can't get discovery unless you have strong evidence of fraud, and you can't get strong evidence of fraud without discovery. 1 Recent revelations of corporate and individual malfeasance, fraud, and accounting irregularities 2 suggest that Congress may revisit, and possibly revise, 3 certain provisions of the Private Securities Litigation Reform Act of 1995 ("PSLRA"). 4 While private securities litigation actions augment the enforcement activities of the Securities and Exchange Commission ("SEC"), 5 critics of private securities actions claim that the threat of strike suits 6 creates enormous, unfair burdens on targeted companies. 7 Congress enacted the PSLRA, in large part, to rein in what it, as well as many members of the business and legal communities, believed to be abusive or unfounded securities lawsuits. 8 In order to protect defendants from the costs associated with frivolous suits, the PSLRA halts any discovery during the pendency of a motion to dismiss. 9 To survive such a motion, the PSLRA places plaintiffs in the unenviable position of having to present a very strong and compelling case at the pleading stage, without the benefit of discovery. 10 On the other hand, the PSLRA arguably provides corporations and other defendants with better protection from "vexatious litigation" 11 because a motion to dismiss will likely defeat a weak or poorly pled case. During the survey period, September 2001 to August 2002, the United States Court of Appeals for the Tenth Circuit, in City of Philadelphia v. Fleming Cos., 12 interpreted ...