Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- American University Washington College of Law (10)
- Seattle University School of Law (9)
- University of Maine School of Law (7)
- University of Montana (7)
- Roger Williams University (5)
-
- University of Oklahoma College of Law (4)
- University of Colorado Law School (3)
- BLR (2)
- Schulich School of Law, Dalhousie University (2)
- SelectedWorks (2)
- University of North Dakota (2)
- Cal Poly Humboldt (1)
- Maurer School of Law: Indiana University (1)
- Pepperdine University (1)
- School of Education and Human Development at the University of Colorado Denver (1)
- University of Baltimore Law (1)
- University of Dayton (1)
- University of Massachusetts Boston (1)
- University of Michigan Law School (1)
- University of Nebraska - Lincoln (1)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (1)
- University of New Mexico (1)
- Publication Year
- Publication
-
- American Indian Law Journal (7)
- Maine Law Review (7)
- Public Land & Resources Law Review (6)
- Articles in Law Reviews & Other Academic Journals (5)
- Ezra Rosser (5)
-
- American Indian Law Review (4)
- Dalhousie Law Journal (2)
- ExpressO (2)
- Life of the Law School (1993- ) (2)
- Publications (2)
- School of Law Conferences, Lectures & Events (2)
- Seattle University Law Review (2)
- US Government Documents related to Indigenous Nations (2)
- All Faculty Scholarship (1)
- Articles by Maurer Faculty (1)
- Blake A Watson (1)
- Cal Poly Humboldt theses and projects (1)
- Department of History: Dissertations, Theses, and Student Research (1)
- Graduate Masters Theses (1)
- Graduate Student Theses, Dissertations, & Professional Papers (1)
- Law Library Newsletters/Blog (1)
- Michigan Law Review (1)
- Native American Water Rights Settlement Project (1)
- Pepperdine Law Review (1)
- Public Lands Mineral Leasing: Issues and Directions (Summer Conference, June 10-11) (1)
- Rachael Whitaker (1)
- Sara C. Bronin (1)
- Sarah Montana Hart (1)
- Scholarly Works (1)
- Publication Type
Articles 1 - 30 of 64
Full-Text Articles in Law
Locke’S “Wild Indian” In United States Supreme Court Jurisprudence, Anthony W. Hobert Phd
Locke’S “Wild Indian” In United States Supreme Court Jurisprudence, Anthony W. Hobert Phd
American Indian Law Journal
This article explores the impact of John Locke’s Two Treatises on United States Indigenous property rights jurisprudence. After discussing Locke’s arguments, the article turns to the rationales of the first and last cases of the Marshall Trilogy—Johnson v. McIntosh (1823) and Worcester v. Georgia (1832)—arguing that, contrary to prevailing political theory, Marshall’s opinion for the Court in Johnson puts forth a fundamentally Lockean justification for the dispossession of Indigenous property. This article also provides a brief analysis of Marshall’s explicit Vattelian rationale in Worcester, commentary on recent developments regarding the precedents, and recommendations for reconciling them within contemporary …
Solemn Vow: Solum's Originalism, Treaties, And Tribal Sovereignty In Castro-Huerta, Liam T. Sheridan
Solemn Vow: Solum's Originalism, Treaties, And Tribal Sovereignty In Castro-Huerta, Liam T. Sheridan
Maine Law Review
In Oklahoma v. Castro-Huerta, the Supreme Court held that states have inherent authority to prosecute crimes committed by non-Indians in “Indian country.” Only two years earlier, the Court in McGirt v. Oklahoma held that most of eastern Oklahoma was Indian country, and thus immune from any state criminal jurisdiction. Castro-Huerta limited this immunity and narrowed the Court’s view of tribal sovereignty as a whole. The majority represented the Court’s originalist faction—minus Justice Gorsuch, who had penned both the majority opinion in McGirt and the dissent in Castro-Huerta. The majority and dissent disagreed over whether federal statutes preempted Oklahoma’s criminal jurisdiction. …
Five Times More Likely: Haaland V. Brackeen And What It Could Mean For Maine Tribes, Eloise Melcher
Five Times More Likely: Haaland V. Brackeen And What It Could Mean For Maine Tribes, Eloise Melcher
Maine Law Review
In the 1970s Native activists realized that states were removing Native children from their families at disproportional rates when compared to non-Native children. The activists pushed for the enactment of the Indian Child Welfare Act, which became law in 1978. The law increases the burden on states before Native children can be taken from their families. As part of a larger movement to attack the Equal Protection Clause in the courts, Haaland v. Brackeen reached the Supreme Court in 2022. The plaintiffs in Brackeen argue that the Indian Child Welfare Act is unconstitutional for a variety of reasons, including that …
The Growing List Of Reasons To Amend The Maine Indian Jurisdictional Agreement, Nicole Friederichs
The Growing List Of Reasons To Amend The Maine Indian Jurisdictional Agreement, Nicole Friederichs
Maine Law Review
The Passamaquoddy Tribe and the Penobscot Nation brought their lands claims against the State of Maine in an effort to reclaim taken lands, to ensure that they could self-determine their futures and to hold on to their cultures and languages. What they faced were a state and federal governments opposed to such a goal. With favorable court decisions in hand, the Tribes began the long process of negotiating for the financial restitution of those claims. They learned, however, that restitution—the recovery of a small portion of their traditional territories—would only be possible if an agreement was made with the State …
One Nation, Under Fraud: A Remonstrance, Hon. Donna M. Loring, Hon. Eric M. Mehnert, Joseph G.E. Gousse Esq.
One Nation, Under Fraud: A Remonstrance, Hon. Donna M. Loring, Hon. Eric M. Mehnert, Joseph G.E. Gousse Esq.
Maine Law Review
This Remonstrance presents a counter-cultural narrative and analysis of Maine’s legal, political, economic, and social interactions with the Wabanaki people. Although contemporary indicia of abuses by the State are glaringly obvious, a cohesive modern narrative that incorporates Maine’s history of predation upon and mistreatment of the tribes has remained poorly defined from an historico-legal perspective. Presenting its analysis through an historic, legal, political, economic, and social nexus, this Remonstrance traces the ontogeny of control exerted by the State of Maine over the Wabanaki tribes and endeavors to excavate the hidden historical narrative of the calculated politico-legal regime that has for …
The Dark Matter Of Federal Indian Law: The Duty Of Protection, Matthew L.M. Fletcher
The Dark Matter Of Federal Indian Law: The Duty Of Protection, Matthew L.M. Fletcher
Maine Law Review
The United States and every federally recognized tribal nation originally entered into a sovereign-to-sovereign relationship highlighted by the duty of protection, an international customary law doctrine in which a larger, stronger sovereign, America in this case, agrees to “protect” the small, weaker sovereign, in this case, tribal nations. America agreed to this in exchange for massive, occasionally unquantifiable amounts of land and resources, as well as the power to control the external sovereign relations of the protected sovereign. The smaller sovereigns received protected reservation lands, hunting and fishing rights, small cash infusions, and the vague promise of protection. What tribal …
Symposium Keynote: "Isolation And Restraint: Maine's Unique Status Outside Federal Indian Law", Michael-Corey Francis Hinton
Symposium Keynote: "Isolation And Restraint: Maine's Unique Status Outside Federal Indian Law", Michael-Corey Francis Hinton
Maine Law Review
No abstract provided.
Changemakers: Elevating Conversations Around Indigenous Peoples' Rights, Roger Williams University School Of Law
Changemakers: Elevating Conversations Around Indigenous Peoples' Rights, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Law Library Blog (October 2022): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Blog (October 2022): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Newsletters/Blog
No abstract provided.
Johnson V. M'Intosh: Christianity, Genocide, And The Dispossession Of Indigenous Peoples, Cynthia J. Boshell
Johnson V. M'Intosh: Christianity, Genocide, And The Dispossession Of Indigenous Peoples, Cynthia J. Boshell
Cal Poly Humboldt theses and projects
Using hermeneutical methodology, this paper examines some of the legal fictions that form the foundation of Federal Indian Law. The text of the U.S. Supreme Court’s 1823 Johnson v. M’Intosh opinion is evaluated through the lens of the Convention on the Prevention and Punishment of the Crime of Genocide to determine the extent to which the Supreme Court incorporated genocidal principles into United States common law. The genealogy of M’Intosh is examined to identify influences that are not fully apparent on the face of the case. International jurisprudential interpretations of the legal definition of genocide are summarized and used as …
An Uncomfortable Truth: Indigenous Communities And Law In New England: Roger Williams University Law Review Symposium 10/22/2021, Roger Williams University School Of Law
An Uncomfortable Truth: Indigenous Communities And Law In New England: Roger Williams University Law Review Symposium 10/22/2021, Roger Williams University School Of Law
School of Law Conferences, Lectures & Events
No abstract provided.
What Is Cultural Misappropriation And Why Does It Matter? 03-31-2021, Roger Williams University School Of Law
What Is Cultural Misappropriation And Why Does It Matter? 03-31-2021, Roger Williams University School Of Law
School of Law Conferences, Lectures & Events
No abstract provided.
Preview—United States V. Cooley: What Will Happen To The Thinnest Blue Line?, Jo J. Phippin
Preview—United States V. Cooley: What Will Happen To The Thinnest Blue Line?, Jo J. Phippin
Public Land & Resources Law Review
The Supreme Court of the United States ("Supreme Court") will hear oral arguments in this matter on Tuesday, March 23, 2021. This case presents the narrow issue of whether a tribal police officer has the authority to investigate and detain a non-Indian on a public right-of-way within a reservation for a suspected violation of state or federal law. The lower courts, holding that tribes have no such authority, granted James Cooley’s motion to suppress evidence. The Supreme Court must decide whether the lower courts erred in so deciding. While the issue before the Supreme Court is itself narrow, it has …
Non-Indian Reservations, Joshua Matthew Rosenau
Non-Indian Reservations, Joshua Matthew Rosenau
Graduate Student Theses, Dissertations, & Professional Papers
This thesis is a skeptical treatment of the logical distinctions presumed to exist between “Indian” and “non-Indian” people. Despite representing 99 percent of the U.S. population, “non-Indians” represent a legal identity which has no explicit definition. The basis for the U.S. Supreme Court’s decisions regarding non-Indians and Indians rests not on any objective, empirical or logical criterion or proof, but rather on the “assumption of a ‘guardian-ward’ status. This thesis investigates this assumption, and recommends that we suspend judgment on whether the difference between “Indians” and “non-Indians” can be determined either by logical argument or by legal assumption.
Law School News: Mike Andrews '97 Nominated To U.S. Court Of Federal Claims 12-15-2020, Michael M. Bowden
Law School News: Mike Andrews '97 Nominated To U.S. Court Of Federal Claims 12-15-2020, Michael M. Bowden
Life of the Law School (1993- )
No abstract provided.
Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla
Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla
Public Land & Resources Law Review
In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction over …
The Flourishing Race: How The Success Of American Indian Artist-Entrepreneurs Underscores The Need For Enhanced Legal Protections For Native Intellectual Property, Jessica Roberts
American Indian Law Journal
No abstract provided.
Hoopa Valley Tribe V. Ferc, Fredrick Aaron Rains
Hoopa Valley Tribe V. Ferc, Fredrick Aaron Rains
Public Land & Resources Law Review
In Hoopa Valley Tribe v. FERC, the Hoopa Valley Tribe challenged the intentional and continual delay of state water quality certification review of water discharged from a series of dams on the Klamath River in California and Oregon. The Federal Energy Regulatory Commission, the states of Oregon and California, and PacifiCorp, a hydroelectric operator, were implementing an administrative scheme designed to circumvent a one-year temporal requirement for review imposed on states by the Clean Water Act. This scheme allowed PacifiCorp to operate the series of dams for over a decade without proper state water quality certification. The United States …
Upstate Citizens For Equality, Inc. V. United States, Kirsa Shelkey
Upstate Citizens For Equality, Inc. V. United States, Kirsa Shelkey
Public Land & Resources Law Review
The Indian Reorganization Act of 1935 is the proper avenue for Tribes pursuing restoration of their historic trust lands. The Oneida Indian Nation of New York long sought to reassert tribal jurisdiction over its historic homeland in Central New York. These efforts were largely unsuccessful until 2008 when the United States took 13,000 acres of this historic homeland into trust on behalf of the Tribe under the Indian Reorganization Act. This case affirms the federal government’s plenary powers over Indian Tribes, and that neither state sovereignty principles, nor the Enclave Clause upset that authority.
A View From American Courts: The Year In Indian Law 2017, Grant Christensen
A View From American Courts: The Year In Indian Law 2017, Grant Christensen
Seattle University Law Review
This Article provides a comprehensive review of Indian law for 2017. It does not include a citation to every case related to Indian law issued by the courts but tries to incorporate the majority of opinions into its catalog to provide a robust discussion of the changes in Indian law over the course of 2017. Part I of this Article provides some general statistics about Indian law in 2017. Part II focuses on activity at the U.S. Supreme Court, which is the most watched forum for Indian law cases for obvious reasons. Part III groups cases by subject area and …
August 2016 - August 2017 Case Law On American Indians, Thomas P. Schlosser
August 2016 - August 2017 Case Law On American Indians, Thomas P. Schlosser
American Indian Law Journal
No abstract provided.
Cdib: The Role Of The Certificate Of Degree Of Indian Blood In Defining Native American Legal Identity, Paul Spruhan
Cdib: The Role Of The Certificate Of Degree Of Indian Blood In Defining Native American Legal Identity, Paul Spruhan
American Indian Law Journal
No abstract provided.
Indian Child Welfare Act Annual Case Law Update And Commentary, Kathryn Fort, Adrian T. Smith
Indian Child Welfare Act Annual Case Law Update And Commentary, Kathryn Fort, Adrian T. Smith
American Indian Law Journal
There are, on average, 200 appellate cases addressing the Indian Child Welfare Act (ICWA) annually—though this number includes published and unpublished opinions. There are usually around thirty reported state appellate court cases involving ICWA issues every year. There has never been a systematic look at the cases on appeal including an analysis of who is appealing, what the primary issues are on appeal, and what trends are present. This article seeks to fill that void.
This article provides a comprehensive catalog of published ICWA jurisprudence from across all fifty states in 2017. Designed as a quick reference for the ICWA …
I See You - A Story From The Haudenosaunee, Simone Anter J.D.
I See You - A Story From The Haudenosaunee, Simone Anter J.D.
American Indian Law Journal
A young Apache woman sits on a bench outside of her university classroom; next to her is a stack of law books. She has just come from the first day of her first-year property class, where the professor lectured about the origins of property law devoid of any mention of Native people. As she sits she notices an individual walking along the sidewalk, towards her. This person wears a baseball hat with the Washington Redskins’ logo embellished on the front, a grotesque caricature of an “Indian.” The person’s attire includes a T-shirt featuring a skull wearing a feathered headdress, probably …
Navajo Nation V. Department Of The Interior, Jaclyn R. Van Natta
Navajo Nation V. Department Of The Interior, Jaclyn R. Van Natta
Public Land & Resources Law Review
In Navajo Nation v. Department of the Interior, the Navajo Nation challenged the Department of the Interior’s 2001 and 2008 water allocation guidelines and asserted that under NEPA and the APA the guidelines violated the Navajo Nation’s water rights. The Navajo Nation also asserted a breach of trust claim against the United States. After nearly a decade of attempted settlement negotiations, the Navajo Nation reasserted its complaints. The District Court for the District of Arizona denied the Navajo Nation’s motions, and the Navajo Nation appealed to the Ninth Circuit Court of Appeals, which determined the Navajo Nation lacked standing, …
Standing Rock, The Sioux Treaties, And The Limits Of The Supremacy Clause, Carla F. Fredericks, Jesse D. Heibel
Standing Rock, The Sioux Treaties, And The Limits Of The Supremacy Clause, Carla F. Fredericks, Jesse D. Heibel
Publications
The controversy surrounding the Dakota Access Pipeline (“DAPL”) has put the peaceful plains of North Dakota in the national and international spotlight, drawing thousands of people to the confluence of the Missouri and Cannonball Rivers outside of Standing Rock Sioux Reservation for prayer and peaceful protest in defense of the Sioux Tribes’ treaties, lands, cultural property, and waters. Spanning over 7 months, including the harsh North Dakota winter, the gathering was visited by indigenous leaders and communities from around the world and represents arguably the largest gathering of indigenous peoples in the United States in more than 100 years.
At …
Beyond A Zero-Sum Federal Trust Responsibility: Lessons From Federal Indian Energy Policy, Monte Mills
Beyond A Zero-Sum Federal Trust Responsibility: Lessons From Federal Indian Energy Policy, Monte Mills
American Indian Law Journal
The federal government’s trust relationship with federally- recognized Indian tribes is a product of the last two centuries of Federal Indian Law and federal-tribal relations. For approximately the last 50 years, the federal government has sought to promote tribal self-determination as a means to carry out its trust responsibilities to Indian tribes; but the shadows of prior federal policies, based largely on notions of tribal incompetence and federal paternalism, remain. Perhaps no other policy arena better demonstrates the history, evolution, and promise for reform of the federal trust relationship than Federal Indian energy policy, or the range of federal statutes …
Taxation And Doing Business In Indian Country, Erik M. Jensen
Taxation And Doing Business In Indian Country, Erik M. Jensen
Maine Law Review
Economic development on the lands of the American Indian nations has been spotty at best. Almost everyone knows the great success stories with Indian gaming, which has been furthered by federal legislation, but those economic benefits have not been felt uniformly. Some tribes have prospered because of this peculiarly favored form of enterprise; others have not and, in many cases, probably cannot. Substantial economic development in Indian country will not occur without significant infusions of outside capital, but investment by non-Indian and nongovernmental sources is risky, or is perceived to be so, which leads to the same practical result. This …
Standing Rock Sioux Tribe V. U.S. Army Corps Of Engineers, Jody D. Lowenstein
Standing Rock Sioux Tribe V. U.S. Army Corps Of Engineers, Jody D. Lowenstein
Public Land & Resources Law Review
The Standing Rock Sioux’s effort to enjoin the U.S. Army Corps of Engineers’ permitting of an oil pipeline was stifled by the United States District Court of the District of Columbia. In denying the preliminary injunction, the court held that the Tribe failed to show that the Corps violated the National Historic Preservation Act, and that the Tribe’s belated effort to litigate was futile after failing to participate in the consultation process.
Operationalizing Free, Prior, And Informed Consent, Carla F. Fredericks
Operationalizing Free, Prior, And Informed Consent, Carla F. Fredericks
Publications
The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) has acknowledged varying ways in which international actors can protect, respect and remedy the rights of indigenous peoples. One of these methods is the concept of free, prior and informed consent (FPIC) as described in Articles 10, 19, 28 and 29. There has been much debate in the international community over the legal status of the UNDRIP, and member states have done little to implement it. In applied contexts, many entities like extractive industries and conservation groups are aware of risks inherent in not soliciting FPIC and have endeavored to …