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Full-Text Articles in Indian and Aboriginal Law

A View From American Courts: The Year In Indian Law 2017, Grant Christensen Jun 2018

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 ...


The State, The Tribe, And The Ugly: The Ninth Circuit Stakes A Bad Claim On Indian Land For Tribal Civil Jurisdiction Over Nonmembers In Window Rock Unified School District V. Reeves, Tyler L. Murphy Jun 2018

The State, The Tribe, And The Ugly: The Ninth Circuit Stakes A Bad Claim On Indian Land For Tribal Civil Jurisdiction Over Nonmembers In Window Rock Unified School District V. Reeves, Tyler L. Murphy

Villanova Law Review

No abstract provided.


Cdib: The Role Of The Certificate Of Degree Of Indian Blood In Defining Native American Legal Identity, Paul Spruhan May 2018

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.


I See You - A Story From The Haudenosaunee, Simone Anter J.D. May 2018

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 ...


Indian Child Welfare Act Annual Case Law Update And Commentary, Kathryn Fort, Adrian T. Smith May 2018

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 ...


August 2016 - August 2017 Case Law On American Indians, Thomas P. Schlosser May 2018

August 2016 - August 2017 Case Law On American Indians, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.


Native American Rights & Adoption By Non-Indian Families: The Manipulation And Distortion Of Public Opinion To Overthrow Icwa, Harman Bual May 2018

Native American Rights & Adoption By Non-Indian Families: The Manipulation And Distortion Of Public Opinion To Overthrow Icwa, Harman Bual

American Indian Law Journal

No abstract provided.


Tribal Exclusion Authority: Its Sovereign Basis With Recommendations For Federal Support, Jeremy Wood May 2018

Tribal Exclusion Authority: Its Sovereign Basis With Recommendations For Federal Support, Jeremy Wood

American Indian Law Journal

No abstract provided.


Congressional Power And Sovereignty In Indian Affairs, Michalyn Steele May 2018

Congressional Power And Sovereignty In Indian Affairs, Michalyn Steele

Utah Law Review

The doctrine of inherent tribal sovereignty—that tribes retain aboriginal sovereign governing power over people and territory—is under perpetual assault. Despite two centuries of precedential foundation, the doctrine must be defended afresh with each attack. Opponents of the doctrine of tribal sovereignty express skepticism of the doctrine, suggesting that tribal sovereignty is a nullity because it is not unfettered. Some pay lip service to the doctrine while undermining tribes in their exercise of inherent sovereignty. Underlying many of these legal fights is confusion about both the nature of tribal sovereignty and the justifications for its continuing existence. Under current ...


Navajo Nation V. Department Of The Interior, Jaclyn R. Van Natta Apr 2018

Navajo Nation V. Department Of The Interior, Jaclyn R. Van Natta

Public Land and 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 ...


The Unseen Harm: U.S.-Indian Relations & Tribal Sovereignty, George Emmons Apr 2018

The Unseen Harm: U.S.-Indian Relations & Tribal Sovereignty, George Emmons

Golden Gate University Law Review

This article explores tribal sovereignty through the lens of the Standing Rock Sioux and its opposition to the DAPL. The DAPL situation is a symptom of the larger problem of a lack of tribal consultation, which diminishes tribal sovereignty and tribal rights.

Part I discusses the history of tribal sovereignty through an explanation of the domestic dependent status of Indian tribes and the two historic canons of Indian treaty interpretation. The Court’s interpretation and application of these canons in the cases of Winters, Dion, and Bourland have a direct relation to the amount of protection given to Indian tribes ...


Current Issues In Native American Law, Gloria Valencia-Weber, Taiawagi Helton, Paul Frye, Samuel Winder, John Echohawk Apr 2018

Current Issues In Native American Law, Gloria Valencia-Weber, Taiawagi Helton, Paul Frye, Samuel Winder, John Echohawk

Gloria Valencia-Weber

Report of the Proceedings of the Judicial Conference of the United States Court of Appeals for the Tenth Circuit. Transcribed conference panel session: Gloria Valencia-Weber focuses her segment on important language on Indian sovereignty in the Nevada v. Hicks case.


Reimagining Overrepresentation Research: Critical Reflections On Researching The Overrepresentation Of First Nations Children In The Child Welfare System, Vandna Sinha, Ashleigh Delaye, Brittany Orav-Lakaski Apr 2018

Reimagining Overrepresentation Research: Critical Reflections On Researching The Overrepresentation Of First Nations Children In The Child Welfare System, Vandna Sinha, Ashleigh Delaye, Brittany Orav-Lakaski

Journal of Law and Social Policy

This paper builds on the experiences of the first author in doing research on the overrepresentation of First Nations children in child welfare systems in Canada. Six lessons are presented: (1) overrepresentation is an inherently quantitative construct; (2) overrepresentation is an inherently comparative construct; (3) a focus on overrepresentation draws attention to the needs of specific groups, but may obscure the need for broader systemic reform; (4) available data relies on, but incompletely represents, decision-maker perspectives; (5) available data emphasizes point-in-time decisions; and (6) ambiguity in data must be very clearly acknowledged. Building on discussion of these lessons, we explore ...


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 Lands…Belonged To Them, Once By The Indian Title, Twice For Having Defended Them…And Thrice For Having Built And Lived On Them”: The Law And Politics Of Métis Title, Karen Drake, Adam Gaudry Jan 2018

“The Lands…Belonged To Them, Once By The Indian Title, Twice For Having Defended Them…And Thrice For Having Built And Lived On Them”: The Law And Politics Of Métis Title, Karen Drake, Adam Gaudry

Karen Drake

To predict what is on the horizon of the Métis legal landscape, we can look to jurisprudence on First Nations’ rights, given that Métis rights cases are typically ten to fifteen years behind those of First Nations. With the release of the Supreme Court of Canada’s decision in Tsilhqot’in, the next big issue in Métis law may be Métis title. Scholars have doubted the ability of Métis to establish Aboriginal title in Canada for two reasons: first, Métis were too mobile, and second, Métis were too immobile. This paper critically analyzes these positions and argues that the case ...


Rebuilding Trust? The Sand Creek Massacre And The Federal-Tribal Trust Relationship In Flute V. United States, Alexander Sokolosky Jan 2018

Rebuilding Trust? The Sand Creek Massacre And The Federal-Tribal Trust Relationship In Flute V. United States, Alexander Sokolosky

Oklahoma Law Review

No abstract provided.


Standing Rock, The Sioux Treaties, And The Limits Of The Supremacy Clause, Carla F. Fredericks, Jesse D. Heibel Jan 2018

Standing Rock, The Sioux Treaties, And The Limits Of The Supremacy Clause, Carla F. Fredericks, Jesse D. Heibel

Articles

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 ...


"At Bears Ears We Can Hear The Voices Of Our Ancestors In Every Canyon And On Every Mesa Top": The Creation Of The First Native National Monument, Charles Wilkinson Jan 2018

"At Bears Ears We Can Hear The Voices Of Our Ancestors In Every Canyon And On Every Mesa Top": The Creation Of The First Native National Monument, Charles Wilkinson

Articles

No abstract provided.


Revisiting Seminole Rock, Jeffrey A. Pojanowski Jan 2018

Revisiting Seminole Rock, Jeffrey A. Pojanowski

Journal Articles

The rule that reviewing courts must defer to agencies’ interpretations of their own regulations has come under scrutiny in recent years. Critics contend that this doctrine, often associated with the 1997 Supreme Court decision Auer v. Robbins, violates the separation of powers, gives agencies perverse regulatory incentives, and undermines the judiciary’s duty to say what the law is.

This essay offers a different argument as to why Auer is literally and prosaically bad law. Auer deference appears to be grounded on a misunderstanding of its originating case, the 1945 decision Bowles v. Seminole Rock. A closer look at Seminole ...


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.


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.