Indian and Aboriginal Law Commons^™

Kansas V. Prairie Band Potawatomi Nation: Undermining Indian Sovereignty Through State Taxation, Jesse K. Martin

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Pluralisms: The Indian New Deal As A Model, Dalia Tsuk

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Toward Genuine Tribal Consultation In The 21st Century, Colette Routel, Jeffrey K. Holth

Faculty Scholarship

The tribal right to consultation requires the federal government to consult with Indian tribes prior to the approval of any federal project, regulation, or agency policy. This article, which provides the first comprehensive analysis of this right, highlights the current inconsistencies in interpretation and application of the consultation duty. It then attempts to provide suggestions for changes that can be implemented by the legislative, executive or judicial branches.

In Part I, we provide a brief overview of the development of the trust responsibility and explain how it came to include three substantive duties: to provide services to tribal members, to ...

South Dakota: Making Dollars And Sense Of Indian Child Removal, Rachael Whitaker

Rachael Whitaker

South Dakota- Making Dollars and Sense of Indian Child Removal

By: Rachael Whitaker

In 2004, a South Dakota Governor’s Commission report adamantly denied claims that the state’s Department of Social Services (DSS) is “harvesting Indian children as a cash crop” and “runs nothing more than a state sponsored kidnapping program.” National Public Radio (NPR) broke a story in 2011, claiming South Dakota removed Indian children for profit. Since NPR’s report, the state has remained tight-lipped, advocates have threatened litigation, and Congress has asked for answers. South Dakota has a small population and economy, and it receives almost ...

Dakota Tribal Courts In Minnesota: Benchmarks Of Self-Determination, Sarah Deer, John E. Jacobson

Faculty Scholarship

Professor Frank Pommersheim has written that “[t]ribal courts are the front line institutions that most often confront issues of American Indian self-determination and sovereignty.”1 It is only fitting, then, that an issue devoted to the legal history and survival of Dakota people includes some information about the role Dakota tribal courts play in furthering the aims of self-determination. Of the over 565 federally recognized tribes in the United States, most operate some form of dispute resolution or judicial system—and all have distinct, unique histories and stories.2 Little has been written about the Dakota legal systems, and ...

The Ambition And Transformative Potential Of Progressive Property, Ezra Rosser

Ezra Rosser

The emerging progressive property school celebrates and finds its meaning in the social nature of property. Rejecting the idea that exclusion lies at the core of property law, progressive property scholars call for a reconsideration of the relationships owners and nonowners have with property and with each other. Despite these ambitions, progressive property scholarship has so far largely confined itself to questions of exclusion and access. This Essay argues that such an emphasis glosses over race-related acquisition and distribution problems that pervade American history and property law. The modest structural changes supported by progressive property scholars fail to account for ...

Tribal Authority To Zone Nonmember Fee Land Using The First Montana Exception: A Game Of Checkers Tribes Can Win, Alexis Applegate

Boston College Environmental Affairs Law Review

The modern Congress and executive branch generally recognize that American Indian tribes retain their inherent sovereign authority over people and property within Indian Country unless Congress previously acted to limit that authority. The Supreme Court, however, has incrementally departed from this recognition of inherent sovereign authority by implementing limits on tribal authority over nonmembers and nonmember land. These impediments began with the divestiture of tribal jurisdiction over crimes committed by nonmembers and expanded to limitations on tribal authority to assert civil regulatory and adjudicative jurisdiction over nonmembers. The Supreme Court first applied this theory of implicit divestiture on limitations of ...

Extreme Rubber-Stamping: The Fee-To-Trust Process Of The Indian Reorganization Act Of 1934, Kelsey J. Waples

Pepperdine Law Review

In recognition of the massive loss of Indian territory since the European “discovery” of America, the Indian Reorganization Act of 1934 provides a process whereby Indian tribes can expand their reservations by applying to have additional land placed into trust for their benefit. This process, known as the fee-to-trust process, is the subject of fervent opposition by many affected communities because once taken into trust for a tribe, such land is no longer subject to state and local taxation or zoning, planning, and other regulatory controls. Accordingly, this Comment explores the efficacy of the fee-to-trust process by analyzing the Pacific ...

The Cherokee Nation: A Question Of Sovereignty, Lydia Magyar

Senior Honors Papers

The history of the Cherokee people with the advent of white settlers in North America is a sad one. Long before Christopher Columbus set foot in the ‘new world’ the Cherokee people were free to live and conduct their relations with each other and with other tribes as they saw fit. With the emergence of foreign hegemony over Native soil followed the suppression and eventual removal of the Cherokee people from their homeland where they had resided for hundreds of years to a reserved area where they would be out of the way of white progression. This thesis proposes to ...

Cooperative Agreements: Government-To-Government Relations To Foster Reservation Business Development, Joel H. Mack, Gwyn Goodson Timms

Pepperdine Law Review

No abstract provided.

Modernising Water: Articulating Custom In Water Governance In Australia And East Timor, Sue E. Jackson, Lisa R. Palmer

The International Indigenous Policy Journal

The modernisation of water governance, which can entail resource commoditisation and privatisation, requires the reformation of water allocation institutions. In many parts of the world, such transformations have empowered statutory systems to dominate or marginalise parallel, extant customary systems of water governance. The water policy and management frameworks of Australia and East Timor (Timor-Leste) are at different stages of a modernisation trajectory; yet, both have extant systems of customary governance and so lend themselves to a comparative analysis. This paper describes the institutions and negotiating arenas through which indigenous peoples of these two countries seek to define, increase or influence ...

Skull Valley Crossroads: Reconciling Native Sovereignty And The Federal Trust, Lincoln L. Davies

Maryland Law Review

No abstract provided.

Science, Sovereignty, And The Sacred Text: Paleontological Resources And Native American Rights, Allison M. Dussias

Maryland Law Review

No abstract provided.

Unjustifiable Expectations: Laying To Rest The Ghosts Of Allotment-Era Settlers, Ann E. Tweedy

Seattle University Law Review

During the allotment era, the federal government took land from tribes and parceled some of it out to individual tribal members, while, in most cases, selling off the remainder to non-Indian settlers. Those actions, which are properly understood as unconstitutional takings, have been reinforced through decades of Supreme Court precedent. Specifically, the Court has used the now repudiated federal allotment policy, which contemplated eventual abolition of tribal governments, to justify contemporary incursions on tribal jurisdictional authority as well as other limitations on tribal sovereign rights. In this way, the Court builds new injustices upon old ones. This Article responds to ...

Section 51(Xxxi) And The Acquisition Of Property Under Commonwealth-State Arrangements: The Relevance To Native Title Extinguishment On Just Terms, Sean Brennan

University of New South Wales Faculty of Law Research Series 2012

While the federal government in Australia must accord ‘just terms’ to a divestee for ‘acquisitions of property’, the constitutional situation for sub-national State governments is different. Under flexible State constitutions, which steer closer to the classic Westminster model of parliamentary sovereignty, the States are understood to have a virtually unlimited power of eminent domain. However recent litigation in the High Court of Australia has emphasised that acquisitions pursuant to Commonwealth-State intergovernmental arrangements can attract the just terms guarantee in the federal constitution. This is so even though the immediate act of expropriation occurs under State law.

This article unpacks the ...

Wotton V Queensland - 'Islands Of Power' And Political Speech On Palm Island, David Hume

University of New South Wales Faculty of Law Research Series 2012

This paper discussed a few important aspects of the recent case Wotton v Queensland that would be later determined by the High Court regarding the custodians of land. It concludes that the decision on this case would have great significance for the nature and scope of the protection given by the implied freedom.

Equality For Indigenous Peoples In The Australian Constitution, Hilary Charlesworth, Andrea Durbach

University of New South Wales Faculty of Law Research Series 2012

Australia’s constitutional protection of individual or group rights is bleak, displaying little interest in concepts of equality and non-discrimination.

Indeed, the Constitution enshrines race as a legitimate category of distinction between people.

In this paper, we consider the evolution of Australia’s ambivalent articulation of race in its Constitution and propose the repeal of section 25.

The paper further proposes that section 25 be replaced by a guarantee of non-discrimination. By reference to South African legislation, we argue

that any replacement provision be bolstered by legislation both prohibiting discrimination and imposing a duty to promote equality.

In Water Wheel, The Ninth Circuit Corrects A Limitation On Tribal Court Jurisdiction, Blair M. Rinne

Boston College Journal of Law & Social Justice

On June 10, 2011, in Water Wheel Camp Recreational Area, Inc. v. LaRance, the U.S. Court of Appeals for the Ninth Circuit held that a tribal court had jurisdiction over a non-Indian corporation and its non-Indian president through the tribe’s inherent authority to exclude and manage its land. The Ninth Circuit limited the application of Montana v. United States, a case restricting tribal authority, to situations involving non-tribal land or to situations in which competing state interests are at play. In so doing, the court gave tribal courts the breadth of power Congress intended.

The Right To Counsel?: The Eighth Circuit Allows Uncounseled Tribal Court Convictions To Satisfy Elements Of Federal Offenses, Melissa Dess

Boston College Journal of Law & Social Justice

On July 6, 2011, in United States v. Cavanaugh, the U.S. Court of Appeals for the Eighth Circuit held that prior, uncounseled tribal court convictions could be used to establish an element of a subsequent federal offense. In so doing, the court deemphasized the importance of reliability concerns in determining the validity of uncounseled convictions.

The Question Of Adequate Representation In The Tyson Court's Denial Of Intervention, Nick Feinstein

Boston College Environmental Affairs Law Review

In 2005, the State of Oklahoma (State) brought a suit against Tyson Foods, Inc. for the improper disposal of poultry waste in the Illinois River Watershed (IRW). Approximately four years later, the Cherokee Nation (Nation) asserted its interests in the IRW and its right to intervene under Rule 24 of the Federal Rules of Civil Procedure. The district court found that the Nation had delayed too long and denied the motion as untimely. On appeal, this decision was upheld based on the fact that the Nation could never have reasonably believed that it was being adequately represented by the State ...