Law and Race Commons^™

An Unfinished Joruney: Arctic Indigenous Rights, Lands, And Jurisdiction?, Tony Penikett

Seattle University Law Review

The indigenous rights movement has been defined as a struggle for land and jurisdiction. Over the last forty years, American and Canadian governments made much progress on the land question in the Arctic and sub-Arctic; however, from an irrational fear of the unknown, politicians in Washington, D.C. and Ottawa have effectively blocked the pathways to aboriginal jurisdiction or self-government. During the late-twentieth century in the Yukon, Northwest Territories, and Nunavut, as well as in Nisga’a territory, indigenous governments negotiated local government powers, but continent-wide progress on the question of indigenous jurisdiction has stalled. This Article considers the formation and implementation …

Fisheries Governance And How It Fits Within The Broader Arctic Governance, Adam Soliman

Seattle University Law Review

Climate change is causing the Arctic ice to melt and fish stocks to change their migration patterns. These changes are increasing access to Arctic fisheries, as well as moving other fish stocks to the north. To prevent the depletion of fish stocks and to protect the Arctic environment, proper fisheries governance requires collaboration between nation-states and specific populations. Fisheries present unique governance and management issues. Unlike other natural resources, fish stocks do not stay in the same place. The non-stationary nature of fish stocks, along with shared sovereignty over the oceans, make coordination between stakeholders the most difficult as well …

Conceptualizing Climate Justice In Kivalina, Marissa Knodel

Seattle University Law Review

Due to climate change, indigenous communities in Alaska are forced to develop in ways that adversely affect their livelihoods and culture. For example, decreases in sea ice, increases in the frequency of sea storms, and melting permafrost have so accelerated the erosion of one barrier island that an entire village faces relocation. These indigenous communities, which have contributed little to causing climate change, are limited in their ability to adapt. After examining three broad questions about the effects of climate change on indigenous communities, this Article reaches four preliminary conclusion about relocation as a climate adaptation strategy and its relations …

Oil And Gas In America's Arctic Ocean: Past Problems Counsel Precaution, Michael Levine, Peter Van Tuyn, Layla Hughes

Seattle University Law Review

This Article provides context for the controversy facing government agencies charged with making decisions about the future of America’s Arctic Ocean. It then distill themes that, if addressed, could help further a lasting solution for this region that respects its natural and human values while crafting a reasonable path forward for decisions about development. First, this Article offers background about the region, the threats facing it, and some of the challenges in managing the natural resources there. Second, it provides an overview of the legal framework through which the United States government makes decisions about whether and under what conditions …

Extracting More Than Resources: Human Security And Arctic Indigenous Women, Victoria Sweet

Seattle University Law Review

The circumpolar Arctic region is at the forefront of rapid change, and with change come potential threats to human security. Numerous factors determine what makes a state, a community, or an individual feel secure. For example, extractive industry development can bring economic benefits to an area, but these development projects also bring security concerns, including potential human rights violations. While security concerns connected with development projects have been studied in southern hemisphere countries and countries classified as “developing,” concerns connected with extractive industry development projects in “developed” countries like the United States have received little attention. This Article will change …

Changes In Latitudes Call For Changes In Attitudes: Towards Recognition Of A Global Imperative For Stewardship, Not Exploitation, In The Arctic, Taylor Simpson-Wood

Seattle University Law Review

For more than two centuries, the imagination of mariners has been captured by visions of a trade route across the Arctic Sea allowing vessels to travel from the Atlantic to the Pacific Ocean. Known as the Northwest Passage, this fabled route is a time- and money-saving sea lane running from the Atlantic Ocean Arctic Circle to the Pacific Ocean Arctic Circle. Now, the thinning of the ice in the Arctic may transform what was once only a dream into a reality. New shipping lanes linking the Atlantic and Pacific oceans are likely to open between 2040 and 2059. If loss …

United States Policy And Norwegian Commercial Whaling: A Cooperative Approach, Jamie Nystrom

Seattle University Law Review

Both the United States and Norway have a long history of commercial whaling, but the mantle of dominance in the whaling world passed from the United States to Norway in the mid-nineteenth century. As demand for whale-based products declined in the United States over the past century, and environmentalism and conservationism became more popular public ideologies, the United States shifted from a pro-whaling nation to, effectively, an anti-whaling nation. Norway, however, has continued to be the only nation that openly engages in commercial whaling for profit, albeit on a smaller scale in comparison to historical practices. The United States’ past …

Satellite Remote Sensing And Database Management: Who Owns The Digitized Information Relating To Indigenous People And Their Artifacts, Brenda Reddix-Smalls

North Carolina Central Law Review

No abstract provided.

Tales Of Color And Colonialism: Racial Realism And Settler Colonial Theory, Natsu Taylor Saito

Florida A & M University Law Review

More than a half-century after the civil rights era, people of color in the United States remain disproportionately impoverished and incarcerated, excluded and vulnerable. Legal remedies rooted in the Constitution's guarantee of equal protection remain elusive. This article argues that the "racial realism" advocated by the late Professor Derrick Bell compels us to look critically at the purposes served by racial hierarchy. By stepping outside the master narrative's depiction of the United States as a "nation of immigrants" with opportunity for all, we can recognize it as a settler state, much like Canada, Australia, and New Zealand. It could not …

American Blood: Who Is Counting And For What?, Gerald Torres

Cornell Law Faculty Publications

When thinking about "who counts," I initially titled this Essay: "Who is Counting and for What?" I wanted to highlight the role that power necessarily plays in the very asking of the question. It presumes a perspective, and interrogating that perspective can only occur if the second part of the question is answered. Because race has always played a critical role in our culture from the very beginning, I wanted to explore one of the many ways it has been deployed to justify a particular expression of power. The story virtually every American learns is the story of the inevitable …

A Framework For Understanding Tribal Courts And The Application Of Fundamental Law: Through The Voices Of Scholars In The Field Of Tribal Justice, April L. Wilkinson, Kiowa Tribe Of Oklahoma

Tribal Law Journal

Through an examination of scholarly articles, this paper examines traditional tribal justice systems set in tribal communities in an effort to establish a framework for understanding tribal courts and the unique challenges they face. The research presented describes a spectrum of traditional aspects within tribal courts, and analyzes the impact that changing social dynamics have had on the tribal court construct. A rigorous review of available research concerning traditional tribal courts showed scholars repeatedly arguing that traditional law, also called fundamental law, which existed before Western style courts, exists beyond the tribal court setting and is fundamental to a tribal …

She Saves Us From Monsters: The Navajo Creation Story And Modern Tribal Justice, Heidi J. Todacheene

Tribal Law Journal

The goal of this paper is to attempt to provide a general social and political framework of the Navajo tribe using the creation story and journey narrative. This will provide a comprehensive insight into the history and modern functioning of the tribe for someone who may not understand traditional Navajo thought. Modern legal cases have been integrated into this paper to demonstrate how Navajo courts use and preserve traditional concepts in current legal analysis. This paper will try to convey a traditional Navajo perspective whose ideology is deeply rooted in the creation story and illustrated through the Holy Beings, especially …

Fond Du Lac Band Of Lake Superior Chippewa V. Frans: An Examination Of State Taxation Of Off-Reservation, Out-Of-State Tribal Member Income, Christopher A. Dodd

Tribal Law Journal

This article analyzes the propriety of state taxation of tribal members’ out-of-state, off-reservation income through a critical examination of Fond du Lac Band of Lac Superior Band of Chippewa v. Frans, 649 F.3d 849 (8th Cir. 2011). The article argues that Judge Murphy’s dissent in the case provided the correct analysis—that state taxation of out-of-state, off-reservation tribal member income is improper when the tribal member resides on tribal land and the only nexus between the state and the taxed income is the tribal member’s state citizenship. The article explains that by granting citizenship to tribal members with the Indian Citizenship …

The Seminole Way: The Path To The 2011 Reestablishment Of The Seminole Nation Of Oklahoma Tribal Court System, John Haney

Tribal Law Journal

This article will examine the Seminole Nation of Oklahoma’s path from the federal dismantling of the Seminole Nation tribal court system upon the statehood of Oklahoma in 1906 to the Seminole Nation’s reestablishment of its tribal court system in 2011. This article will also explore the Seminole Nation’s methods of integrating tribal tradition and custom into the Seminole tribal court system, and will also present the many challenges that exist in developing an efficient and sustainable tribal justice system. The article will demonstrate that the Seminole Nation’s persisting determination to reestablish its judicial authority stems from the desire to maximize …

Converge! Reimagining The Movement To End Gender Violence Symposium: Panel On Intersections Of Gender, Economic, Racial, And Indigenous (In) Justice, Margaret E. Johnson

All Faculty Scholarship

JOHNSON: This presentation envisions what a better domestic violence legal system might look like for persons subjected to domestic abuse who have not had their needs met or who have been harmed by the current legal system. The paper reframes the focus of the civil legal system from a paradigm of safety into a paradigm of security, including economic, housing, health, and relationship security. This reframing permits a focus on the domestic violence legal system and its intersecting systems of oppression such as race, gender, class, and ethnicity.

Currently, the domestic violence legal system targets short-term physical safety of the …

Rethinking Resistance: Reflections On The Cultural Lives Of Property, Collective Identity, And Intellectual Property, 47 J. Marshall L. Rev. 1349 (2014), Caroline Joan Picart

UIC Law Review

No abstract provided.

Constitutional Concern, Membership, And Race, Sarah Krakoff

Publications

American Indian Tribes in the United States have a unique legal and political status shaped by fluctuating federal policies and the over-arching history of this country’s brand of settler-colonialism. One of the several legacies of this history is that federally recognized tribes have membership rules that diverge significantly from typical state or national citizenship criteria. These rules and their history are poorly understood by judges and members of the public, leading to misunderstandings about the “racial” status of tribes and Indian people, and on occasion to incoherent and damaging decisions on a range of Indian law issues. This article, which …

Red Law, White Supremacy: Cherokee Freedmen, Tribal Sovereignty, And The Colonial Feedback Loop, 47 J. Marshall L. Rev. 1227 (2014), Jeremiah Chin

UIC Law Review

This paper attempts to unpack questions at the intersections of race and sovereignty by analyzing two federal court cases involving Cherokee Freedmen and citizenship: Vann v. United States DOI and Cherokee Nation v. Nash.

The Human Costs Of “Free Association”: Socio-Cultural Narratives And The Legal Battle For Micronesian Health In Hawai'i, 47 J. Marshall L. Rev. 1377 (2014), Susan Serrano

UIC Law Review

No abstract provided.

Tribal Disruption And Indian Claims, Matthew L.M. Fletcher, Kathryn E. Fort, Dr. Nicholas J. Reo

Michigan Law Review First Impressions

Legal claims are inherently disruptive. Plaintiffs' suits invariably seek to unsettle the status quo. On occasion, the remedies to legal claims can be so disruptive-that is, impossible to enforce or implement in a fair and equitable manner-that courts simply will not issue them. In the area of federal Indian law, American Indian tribal claims not only disrupt the status quo but may even disrupt so-called settled expectations of those affected by the claims. The U.S. Court of Appeals for the Second Circuit has dismissed a round of Indian land claims at the pleading stage, includingOnondaga Nation v. New York, because …