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Full-Text Articles in Indian and Aboriginal Law

Implicit Divestiture Reconsidered: Outtakes From The Cohen's Handbook Cutting-Room Floor, John Lavelle Feb 2018

Implicit Divestiture Reconsidered: Outtakes From The Cohen's Handbook Cutting-Room Floor, John Lavelle

John P. LaVelle

The most dramatic development in the field of Indian law during the years between publication of the 1982 and 2005 editions of Cohen's Handbook of Federal Indian Law has been the Supreme Court's reliance on a judicially devised theory for denying the inherent sovereign governing authority of Indian nations in cases where Congress has not acted to divest tribes of this authority. The executive committee of the board of authors and editors for the 2005 revision of Cohen's Handbook recognized the importance of discussing this recent line of cases in-depth and entrusted me with the task of ...


Petitioner's Brief - Reargument Of Oliphant V. Suquamish Indian Tribe, John Lavelle Feb 2018

Petitioner's Brief - Reargument Of Oliphant V. Suquamish Indian Tribe, John Lavelle

John P. LaVelle

Does the Suquamish Indian Tribe possess inherent sovereign power to exercise criminal jurisdiction over non-Indians alleged to have committed misdemeanor crimes within the boundaries of the tribe's own reservation in violation of the Suquamish Law and Order Code?


Strengthening Tribal Sovereignty Through Indian Participation In American Politics: A Reply To Professor Porter, John Lavelle Feb 2018

Strengthening Tribal Sovereignty Through Indian Participation In American Politics: A Reply To Professor Porter, John Lavelle

John P. LaVelle

A rebuttal to Porter's recent article The Demise of the Ongwehoweh and the Rise ofthe Native Americans: Redressing the Genocidal Act of Forcing American Citizenship upon Indigenous Peoples


Review Essay: “Indians Are Us?: Culture And Genocide In Native North America" By Me Monroe, John Lavelle Feb 2018

Review Essay: “Indians Are Us?: Culture And Genocide In Native North America" By Me Monroe, John Lavelle

John P. LaVelle

Indians Are Us? is a collection of commentaries on American Indian political and social affairs, written in the truculent tone that readers have come to expect from writer Ward Churchill. Like its predecessors, Fantasies of the Master Race and Struggle far the Land, this latest Churchill project consists largely of polemical pieces hastily compiled from obscure leftist publications.


Gmos, International Law And Indigenous Peoples, Casandia Bellevue Feb 2018

Gmos, International Law And Indigenous Peoples, Casandia Bellevue

Pace International Law Review

This Article sprung from a desire to discover why—despite scientific uncertainty and the oft-cited precautionary principle in international law—genetically modified organisms are still allowed to spread via international trade and natural ecological cycles. While exploring this topic, it did not take long to come across the environmental justice impacts of genetically modified crops, and their particularly disparate impact upon indigenous peoples across the globe. Not only are GMOs threatening biodiversity and our planet, but also the very existence and cultural foundations of many indigenous groups.

This Article seeks to answer the following questions: What are the international agreements ...


A Dollar For Your Thoughts: Dollar General And The Supreme Court's Struggle With Tribal Civil Jurisdiction, Hallie Mcdonald Feb 2018

A Dollar For Your Thoughts: Dollar General And The Supreme Court's Struggle With Tribal Civil Jurisdiction, Hallie Mcdonald

Hofstra Law Review

No abstract provided.


The Sioux's Suits: Global Law And The Dakota Access Pipeline, Stephen Young Dec 2017

The Sioux's Suits: Global Law And The Dakota Access Pipeline, Stephen Young

American Indian Law Journal

The Sioux Tribe’s lawsuits and protests against the Dakota Access Pipelines (DAPL) received an incredible amount of international attention in ways that many Indigenous peoples’ protests have not. This article argues that attention exists because the Sioux Tribe has been at the epicenter of the Indigenous peoples’ rights movement in international law. Accordingly, they have invoked or claimed international human rights—particularly free, prior, and informed consent (FPIC)— to complicate, and perhaps destabilize, the DAPL’s development. However, the importance of their activism is not merely in claiming human rights.

Based upon a global map of law that involves ...


A Hell Of A Complex: The Miscarriages Of The Federal Hydropower Licensing Regime, Derek Red Arrow Frank Dec 2017

A Hell Of A Complex: The Miscarriages Of The Federal Hydropower Licensing Regime, Derek Red Arrow Frank

American Indian Law Journal

What you are about to read is an illustration of systemic racism. Systemic racism is the current effects of statutes and policies developed through a singular and racially-charged narrative. The current hydropower relicensing regime fails to acknowledge the overarching Treaty-reserved rights of American Indian tribes while statutorily granting state and federal authorities the power to prescribe mandatory conditions on hydropower projects. This fact remains constant whether the hydropower project is within or outside a tribe’s reservation or aboriginal territory. Specifically, the Hells Canyon Complex, which rests along the Snake River, has had and continues to have enormous impacts on ...


Solution Before Pollution: Mining And International Transboundary Rivers In Southeast Alaska, Britany Kee’ Ya Aa. Lindley Dec 2017

Solution Before Pollution: Mining And International Transboundary Rivers In Southeast Alaska, Britany Kee’ Ya Aa. Lindley

American Indian Law Journal

No abstract provided.


Conservation Easements: A Flexible New Tool For Washington Tribes, A Case Study Of The Lower Elwha Klallam Tribe, David P. Papiez Dec 2017

Conservation Easements: A Flexible New Tool For Washington Tribes, A Case Study Of The Lower Elwha Klallam Tribe, David P. Papiez

American Indian Law Journal

No abstract provided.


By Any Means: How One Federal Agency Is Turning Tribal Sovereignty On Its Head, Clifton Cottrell Dec 2017

By Any Means: How One Federal Agency Is Turning Tribal Sovereignty On Its Head, Clifton Cottrell

American Indian Law Journal

No abstract provided.


Beyond A Zero-Sum Federal Trust Responsibility: Lessons From Federal Indian Energy Policy, Monte Mills Dec 2017

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 ...


Indian Sovereignty, General Federal Laws, And The Canons Of Construction: An Overview And Update, Bryan H. Wildenthal Dec 2017

Indian Sovereignty, General Federal Laws, And The Canons Of Construction: An Overview And Update, Bryan H. Wildenthal

American Indian Law Journal

No abstract provided.


United States V. Osage Wind, Llc, Summer Carmack Dec 2017

United States V. Osage Wind, Llc, Summer Carmack

Public Land and Resources Law Review

The Osage Nation, as owner of the beneficial interest in its mineral estate, issues federally-approved leases to persons and entities who wish to conduct mineral development on its lands. After an energy-development company, Osage Wind, leased privately-owned surface lands within Tribal reservation boundaries and began to excavate minerals for purposes of constructing a wind farm, the United States brought suit on the Tribe’s behalf. In the ensuing litigation, the Osage Nation insisted that Osage Wind should have obtained a mineral lease from the Tribe before beginning its work. In its decision, the Tenth Circuit applied one of the Indian ...


Constitutional Conflict And The Development Of Canadian Aboriginal Law, Guy Charlton, Xiang Gao Dec 2017

Constitutional Conflict And The Development Of Canadian Aboriginal Law, Guy Charlton, Xiang Gao

The University of Notre Dame Australia Law Review

This paper argues that aboriginal rights in Canada have been greatly affected by 19 th century governmental and social conflicts within the Canadian colonial state. These conflicts, largely over the ownership of land and regulatory authority between the federal government and the provinces necessarily impacted the First Nations on the ground while affecting how their legal claims were recognized and implemented. In particular they impacted the legal efficacy of treaty rights, the scope of rights recognised by the courts and an expansive legally protected notion of indigenous sovereignty. As a result, the rights now protected under sec. 25 and 35 ...


Indigenous Rights In The Trump Era, Tereza M. Szeghi Nov 2017

Indigenous Rights In The Trump Era, Tereza M. Szeghi

The Social Practice of Human Rights: Charting the Frontiers of Research and Advocacy

This paper examines the ways in which the Dakota Access Pipeline and the related protests were divergently covered in mainstream versus alternative news sources and what this divergent coverage suggests about the current status of American Indian affairs and the role of American Indians in the U.S. cultural imaginary. Moreover, the paper will address the status of American Indian tribal sovereignty in the Trump era more broadly, with particular focus on American Indians' treaty-related rights to self-determination in the use of their lands.


An Avoidable Conundrum: How American Indian Legislation Unnecessarily Forces Tribal Governments To Choose Between Cultural Preservation And Women's Vindication, Catherine M. Redlingshafer Nov 2017

An Avoidable Conundrum: How American Indian Legislation Unnecessarily Forces Tribal Governments To Choose Between Cultural Preservation And Women's Vindication, Catherine M. Redlingshafer

Notre Dame Law Review

This Note makes two arguments concerning the state of American Indian legislation, and then proposes an alternative. First, this Note argues that the recently enacted legislation regarding criminal justice in American Indian societies will work to encourage cultural assimilation and result in the loss of tribal traditions and autonomy. In effect, the legislation is putting tribes in an impossible position: it is unfairly coercing them to choose between (1) the preservation of their own culture and customs, and (2) the ability to prosecute those victimizing their members. Second, this Note argues that even if a tribe decides to risk its ...


A Submission On Indigenous Intellectual Property To The House Of Representatives Standing Committee On Indigenous Affairs And The Museums Galleries Australia - Indigenous Roadmap Project, Matthew Rimmer Oct 2017

A Submission On Indigenous Intellectual Property To The House Of Representatives Standing Committee On Indigenous Affairs And The Museums Galleries Australia - Indigenous Roadmap Project, Matthew Rimmer

Matthew Rimmer

Executive Summary

There is a long history of legal, political, and ethical debate in respect of the problem of misappropriation of Indigenous intellectual property in Australia. There has been perennial public policy inquiries into the topic of Indigenous intellectual property – although there has been only a partial and mixed array of responses.

I would comment that the Australian experience has been a mixed one. It is true that von Doussa J of the Federal Court of Australia has shown judicial innovation in a number of cases – most notably, the “Carpets” case, and the “Bulun Bulun” decision. However, there have been ...


Recent Developments, Kevin Washburn Oct 2017

Recent Developments, Kevin Washburn

Kevin K. Washburn

Summary of cases in the areas of environmental law, taxation of natural resources, and water rights cases involving Native American tribes.


Taxation And Doing Business In Indian Country, Erik M. Jensen Oct 2017

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 ...


Cohen's Handbook Of Federal Indian Law, Barbara L. Creel, Gloria Valencia-Weber, Christine Zuni Cruz, Kenneth Bobroff, Kevin Washburn, John Lavelle Oct 2017

Cohen's Handbook Of Federal Indian Law, Barbara L. Creel, Gloria Valencia-Weber, Christine Zuni Cruz, Kenneth Bobroff, Kevin Washburn, John Lavelle

John P. LaVelle

Cohen's Handbook of Federal Indian Law is an encyclopedic treatise written by experts in the field, and provides general overviews to relevant information as well as in-depth study of specific areas within this complex area of federal law. This is an updated and revised edition of what has been referred to as the ""bible"" of federal Indian law. This publication focuses on the relationship between tribes, the states and the federal government within the context of civil and criminal jurisdiction, as well as areas of resource management and government structure. This compact publication is the only comprehensive treatise explicating ...


Cohen's Handbook Of Federal Indian Law, Barbara L. Creel, Gloria Valencia-Weber, Christine Zuni Cruz, Kenneth Bobroff, Kevin Washburn, John Lavelle Oct 2017

Cohen's Handbook Of Federal Indian Law, Barbara L. Creel, Gloria Valencia-Weber, Christine Zuni Cruz, Kenneth Bobroff, Kevin Washburn, John Lavelle

Kevin K. Washburn

Cohen's Handbook of Federal Indian Law is an encyclopedic treatise written by experts in the field, and provides general overviews to relevant information as well as in-depth study of specific areas within this complex area of federal law. This is an updated and revised edition of what has been referred to as the ""bible"" of federal Indian law. This publication focuses on the relationship between tribes, the states and the federal government within the context of civil and criminal jurisdiction, as well as areas of resource management and government structure. This compact publication is the only comprehensive treatise explicating ...


Cohen's Handbook Of Federal Indian Law, Barbara L. Creel, Gloria Valencia-Weber, Christine Zuni Cruz, Kenneth Bobroff, Kevin Washburn, John Lavelle Oct 2017

Cohen's Handbook Of Federal Indian Law, Barbara L. Creel, Gloria Valencia-Weber, Christine Zuni Cruz, Kenneth Bobroff, Kevin Washburn, John Lavelle

Christine Zuni Cruz

Cohen's Handbook of Federal Indian Law is an encyclopedic treatise written by experts in the field, and provides general overviews to relevant information as well as in-depth study of specific areas within this complex area of federal law. This is an updated and revised edition of what has been referred to as the ""bible"" of federal Indian law. This publication focuses on the relationship between tribes, the states and the federal government within the context of civil and criminal jurisdiction, as well as areas of resource management and government structure. This compact publication is the only comprehensive treatise explicating ...


Cohen's Handbook Of Federal Indian Law, Barbara L. Creel, Gloria Valencia-Weber, Christine Zuni Cruz, Kenneth Bobroff, Kevin Washburn, John Lavelle Oct 2017

Cohen's Handbook Of Federal Indian Law, Barbara L. Creel, Gloria Valencia-Weber, Christine Zuni Cruz, Kenneth Bobroff, Kevin Washburn, John Lavelle

Gloria Valencia-Weber

Cohen's Handbook of Federal Indian Law is an encyclopedic treatise written by experts in the field, and provides general overviews to relevant information as well as in-depth study of specific areas within this complex area of federal law. This is an updated and revised edition of what has been referred to as the ""bible"" of federal Indian law. This publication focuses on the relationship between tribes, the states and the federal government within the context of civil and criminal jurisdiction, as well as areas of resource management and government structure. This compact publication is the only comprehensive treatise explicating ...


Cohen's Handbook Of Federal Indian Law, Barbara L. Creel, Gloria Valencia-Weber, Christine Zuni Cruz, Kenneth Bobroff, Kevin Washburn, John Lavelle Oct 2017

Cohen's Handbook Of Federal Indian Law, Barbara L. Creel, Gloria Valencia-Weber, Christine Zuni Cruz, Kenneth Bobroff, Kevin Washburn, John Lavelle

Barbara L Creel

Cohen's Handbook of Federal Indian Law is an encyclopedic treatise written by experts in the field, and provides general overviews to relevant information as well as in-depth study of specific areas within this complex area of federal law. This is an updated and revised edition of what has been referred to as the ""bible"" of federal Indian law. This publication focuses on the relationship between tribes, the states and the federal government within the context of civil and criminal jurisdiction, as well as areas of resource management and government structure. This compact publication is the only comprehensive treatise explicating ...


United States V. Gila Valley Irrigation District, Ryan L. Hickey Oct 2017

United States V. Gila Valley Irrigation District, Ryan L. Hickey

Public Land and Resources Law Review

Attempts to alter water use agreements, especially those spanning back decades or even centuries, elicit intense scrutiny from water rights holders. In United States v. Gila Valley Irrigation Dist., the Ninth Circuit upheld application of a 1935 Decree apportioning water among various regional entities, including two Indian tribes, to bar a mineral company from transferring water rights between properties within the Gila River drainage.


The Inherent Right Of Indigenous Governance, Kent Mcneil Oct 2017

The Inherent Right Of Indigenous Governance, Kent Mcneil

All Papers

I would like to start by acknowledging and thanking the Algonquin Nation, on whose unceded territory we are meeting.

When the Dominion of Canada was created in 1867 by the UK Parliament, the BNA Act gave the Parliament of Canada exclusive jurisdiction over “Indians, and Lands reserved for the Indians”. Parliament used this authority to enact the Indian Act in 1876. That statute gave the Canadian government the power to impose the band council system on First Nations without their consent.

The governance authority of First Nation band councils is therefore delegated authority – it comes from the Indian Act and ...


Getches-Wilkinson Center Newsletter, Fall 2017, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment Oct 2017

Getches-Wilkinson Center Newsletter, Fall 2017, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Getches-Wilkinson Center for Natural Resources, Energy, and the Environment Newsletter (2013-)

No abstract provided.


The Supreme Court's Last 30 Years Of Federal Indian Law: Looking For Equilibrium Or Supremacy?, Alexander Tallchief Skibine Oct 2017

The Supreme Court's Last 30 Years Of Federal Indian Law: Looking For Equilibrium Or Supremacy?, Alexander Tallchief Skibine

Utah Law Faculty Scholarship

Since 1831, Indian nations have been viewed as Domestic Dependent Nations located within the geographical boundaries of the United States. Although Chief Justice John Marshall acknowledged that Indian nations had a certain amount of sovereignty, the exact extent of such sovereignty as well as the place of tribes within the federal system has remained ill-defined. This Article examines what has been the role of the Supreme Court in integrating Indian nations as the third Sovereign within our federalist system. The Article accomplishes this task by examining the Court’s Indian law record in the last 30 years. The comprehensive survey ...


Agua Caliente Band Of Cahuilla Indians V. Coachella Valley Water Dist., Rebecca Newsom Sep 2017

Agua Caliente Band Of Cahuilla Indians V. Coachella Valley Water Dist., Rebecca Newsom

Public Land and Resources Law Review

In Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., the Ninth Circuit upheld the Tribe’s federal reserved right to the groundwater underlying its reservation. This decision enforces that the courts will not defer to state water law when there is an established federal reserved water right. Further, the Ninth Circuit expressly extended this right to groundwater.