Legal History Commons^™

Federal Indian Law As Method, Matthew L. M. Fletcher

Articles

Morton v. Mancari is well-known in Indian law circles as a foundation for the tribal self-determination era, which is generally understood to have begun in the late 1960s and early 1970s. The case involved an Act of Congress that required the federal “Indian Office” (now called the Bureau of Indian Affairs) to grant preference in employment to “Indians.” The case is typically understood as the basis for analyzing how federal statutes that apply exclusively to Indian people do not implicate the anti-discrimination principles of the United States Constitution. This understanding of the case, while correct, is too narrow.

Rennard Strickland: Legal Historian And Leader, Charles Wilkinson

Publications

No abstract provided.

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.

We Have The Land Titles: Indigenous Litigants And Privatization Of Resguardos In Colombia, 1870s-1940s, Gloria Lopera

FIU Electronic Theses and Dissertations

Pressures for the privatization of indigenous lands accompanied the making of nation-states in post-colonial Latin America and boosted the natives' quest for colonial legal documents suitable to prove their rights over indigenous communal landholdings (known in Colombia as "resguardos"). This dissertation compares the experiences of two communities - San Lorenzo and Cañamomo-Lomaprieta - engaging with the law and producing legal and historical evidence to respond to the privatization of their resguardos. These communities inhabit the municipalities of Riosucio and Supía (Caldas) in the Western Colombian Andes. While the study explores the genesis of San Lorenzo's and Cañamomo-Lomaprieta's …

Crisis? Whose Crisis?, Jack M. Beermann

Faculty Scholarship

Every moment in human history can be characterized by someone as “socially and politically charged.” For a large portion of the population of the United States, nearly the entire history of the country has been socially and politically charged, first because they were enslaved and then because they were subjected to discriminatory laws and unequal treatment under what became known as “Jim Crow.” The history of the United States has also been a period of social and political upheaval for American Indians, the people who occupied the territory that became the United States before European settlement. Although both African-Americans and …

The Contrasting Fates Of French Canadian And Indigenous Constitutionalism: British North America, 1760-1867, Philip Girard

Articles & Book Chapters

In the century after the fall of New France, both Indigenous peoples of Canada and French Canadians could be described as colonised peoples. Yet the treatment of each group's pre-existing laws and the ways in which each found its constitutional demands recognised (or not) varied considerably. In spite of significant rebellions in 1837-1838, French Canadians went on to achieve a high degree of autonomy within the province of Quebec in the British North America Act 1867. Meanwhile, intercultural legal arrangements with Indigenous peoples, such as the Covenant Chain, which could be termed constitutional, were gradually undermined, ignored and forgotten. This …

Not Yet America's Best Idea: Law, Inequality, And Grand Canyon National Park, Sarah Krakoff

Publications

Even the nation’s most cherished and protected public lands are not spaces apart from the workings of law, politics, and power. This Essay explores that premise in the context of Grand Canyon National Park. On the occasion of the Park’s 100th Anniversary, it examines how law — embedded in a political economy committed to rapid growth and development in the southwestern United States — facilitated the violent displacement of indigenous peoples and entrenched racialized inequalities in the surrounding region. It also explores law’s shortcomings in the context of sexual harassment and discrimination within the Park. The Essay concludes by suggesting …

The Belloni Decision: A Foundation For The Northwest Fisheries Cases, The National Tribal Sovereignty Movement, And An Understanding Of The Rule Of Law, Charles Wilkinson

Publications

Judge Belloni’s decision in United States v. Oregon, handed down a half-century ago, has been given short shrift by lawyers, historians, and other commentators on the modern revival of Indian treaty fishing rights in the Pacific Northwest. The overwhelming amount of attention has been given to Judge Boldt’s subsequent decision in United States v. Washington and the Passenger Vessel ruling by the Supreme Court affirming Judge Boldt. I’m one who has been guilty of that.

We now can see that United States v. Oregon was the breakthrough. In those early days, Judge Belloni showed deep understanding of the two …

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 …

"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

Publications

No abstract provided.

Public Lands, Conservation, And The Possibility Of Justice, Sarah Krakoff

Publications

On December 28, 2016, President Obama issued a proclamation designating the Bears Ears National Monument pursuant to his authority under the Antiquities Act of 1906, which allows the President to create monuments on federal public lands. Bears Ears, which is located in the heart of Utah’s dramatic red rock country, contains a surfeit of ancient Puebloan cliff-dwellings, petroglyphs, pictographs, and archeological artifacts. The area is also famous for its paleontological finds and its desert biodiversity. Like other national monuments, Bears Ears therefore readily meets the statutory objective of preserving “historic and prehistoric structures, and other objects of historic or scientific …

Property And Sovereignty: An Indian Reserve And A Canadian City, Douglas C. Harris

All Faculty Publications

Property rights, wrote Morris Cohen in 1927, are delegations of sovereign power. They are created by the state and operate to establish limits on its power. As such, the allocation of property rights is an exercise of sovereignty and a limited delegation of it. Sixty years later, Joseph Singer used Cohen’s conceptual framing in a critical review of developments in American Indian law. Where the US Supreme Court had the opportunity to label an American Indian interest as either a sovereign interest or a property interest, he argued, it invariably chose to the disadvantage of the Indians. Within Canada, Indigenous …

Agenda: A Celebration Of The Work Of Charles Wilkinson: Served With Tasty Stories And Some Slices Of Roast, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

A Celebration of the Work of Charles Wilkinson (Martz Winter Symposium, March 10-11)

Conference held at the University of Colorado, Wolf Law Building, Wittemyer Courtroom, Thursday, March 10th and Friday, March 11th, 2016.

Conference moderators, panelists and speakers included University of Colorado Law School professors Phil Weiser, Sarah Krakoff, William Boyd, Kristen Carpenter, Britt Banks, Harold Bruff, Richard Collins, Carla Fredericks, Mark Squillace, and Charles Wilkinson

"We celebrate the work of Distinguished Professor Charles Wilkinson, a prolific and passionate writer, teacher, and advocate for the people and places of the West. Charles's influence extends beyond place, yet his work has always originated in a deep love of and commitment to particular places. We …

They Had Nothing, Charles Wilkinson

Publications

No abstract provided.

Cherokee Freedmen And The Color Of Belonging, Lolita Buckner Inniss

Publications

This article addresses the Cherokee tribe and their historic conflict with the descendants of their former black slaves, designated Cherokee Freedmen. This article specifically addresses how historic discussions of black, red and white skin colors, designating the African-ancestored, aboriginal (Native American) and European-ancestored people of the United States, have helped to shape the contours of color-based national belonging among the Cherokee. This article also suggests that Homi K. Bhabha’s notion of postcolonial mimicry offers a potent source for analyzing the Cherokee’s historic use of skin color as a marker of Cherokee membership. The Cherokee past practice of black slavery and …

Review Of Colin Calloway, Pen And Ink Witchcraft: Treaties And Treaty Making In American Indian History, Bethany Berger

Faculty Articles and Papers

No abstract provided.

Adoption Law In The United States: A Pathfinder, Glen-Peter Ahlers Sr.

Faculty Scholarship

No abstract provided.

Law, Violence, And The Neurotic Structure Of American Indian Law, Sarah Krakoff

Publications

No abstract provided.

To Return From Where We Started: Revisioning Of Property, Land Use, Economy, And Regulation In America, John W. Ragsdale Jr

Faculty Works

No abstract provided.

Never Construed To Their Prejudice: In Honor Of David Getches, Richard B. Collins

Publications

This article reviews and analyzes the judicial canons of construction for Native American treaties and statutes. It discusses their theoretical justifications and practical applications. It concludes that the treaty canon has ready support in contract law and the law of treaty interpretation. Justification of the statutory canon is more challenging and could be strengthened by attention to the democratic deficit when Congress imposes laws on Indian country. Applications of the canons have mattered in disputes between Indian nations and private or state interests. They have made much less difference, and have suffered major failings, in disputes with the federal government. …

A Story Of Marguerite: A Tale About Panis, Case Comment, And Social History, Signa A. Daum Shanks

Articles & Book Chapters

Those interested in social history contend that social norms deserve attention due to how they impact and are affected by historical events. This subfield has contributed significantly to how larger historical mosaics are understood, and how themes specific to marginalized groups are appreciated today. By presenting the story of enslaved Indigenous woman in New France who was the first Indigenous civil litigant in Canadian history, and focusing on her representation in the colonial legal system, a number of themes emerge. Canada’s history of slavery becomes better understood, and in so doing, a challenge to social historians is presented. By examining …

The Human Rights Of Indigenous Peoples: United Nations Developments, S. James Anaya

Publications

No abstract provided.

Heeding The Clarion Call For Sustainable, Spiritual Western Landscapes: Will The People Be Granted A New Forest Service?, Charles Wilkinson, Daniel Cordalis

Publications

No abstract provided.

Review Of Compact, Contract, Covenant: Aboriginal Treaty Making In Canada. By J.R. Miller., Sidney L. Harring

Great Plains Research: A Journal of Natural and Social Sciences

In Canada, the term First Nations explicitly recognizes a nation-to-nation relationship between the Crown and the original inhabitants of North America that requires treaty making as the primary political and legal process for the taking of Indian lands and the incorporation of Indian nations into the multinational Canadian state. There are great political difficulties embodied in this process, including the continued impoverishment and marginalization of the First Nations, and the repeated failure of successive Canadian governments to carry out their responsibilities under these treaties, but the treaty process remains the required process. J.R. Miller, perhaps Canada's leading scholar of Aboriginal …

The Reconciliation Doctrine In The Mclachlin Court: From A “Final Legal Remedy” To A “Just And Lasting” Process, Constance Macintosh

Articles, Book Chapters, & Popular Press

The issue upon which this paper focuses is one that runs through much of the Aboriginal rights jurisprudence over the last ten years: the idea of “reconciliation." However, the way in which the term is deployed, the values that inform it, the logic that drives it, and the conclusions that it supports have shifted and are continuing to shift. There are considerable differences between how this term was used at the time of Lamer C.J., its meaning for the bench under McLachlin C.J., and the new role it has evolved to take on most recently. In particular, reconciliation has come …

The Last Indian Raid In Kansas: Context, Colonialism, And Philip P. Frickey's Contributions To American Indian Law, Sarah Krakoff

Publications

To many, American Indian law is a remote and anomalous area of the law. To others, including Professor Phil Frickey, themes in American Indian law are central to our identity as a nation, and lessons from the field inform broader understandings of the competencies and limitations of the federal judiciary. One of Professor Frickey’s recurring scholarly arguments is that the federal courts are most within their areas of institutional competence when they approach contemporary Indian law questions as structural disputes between sovereigns, rather than as individual conflicts amenable to the application of mainstream public law values. An event described as …

The Public Lands And The National Heritage, Charles F. Wilkinson

Publications

No abstract provided.

Indian Nations And The Federal Government: What Will Justice Require In The Future? Claims Against The Sovereign 20th Jusicial Conference Of The United States Court Of Federal Claims, Charles Wilkinson

Publications

No abstract provided.

Interpretive Sovereignty: A Research Agenda, Kristen A. Carpenter

Publications

In federal Indian law, the treaty operates as our foundational legal text. Reflecting centuries-old historical political arrangements between Indian nations and the United States, treaties remain vital legal instruments that decide dozens of legal cases each year. Yet, these treaties--originally drafted in English by the federal government, following negotiations with tribal representatives who usually spoke their own languages--present a number of ambiguities for contemporary courts. The dominant model of treaty interpretation is one in which judges interpret treaties in a manner they they believe to reflect Indians' understanding of treaty terms and, more generally, to promote the interests of Indian …

A Brief History Of The U.S.-American Indian Nations Relationship, Richard B. Collins

Publications

No abstract provided.