Open Access. Powered by Scholars. Published by Universities.®

Indian and Aboriginal Law Commons

Open Access. Powered by Scholars. Published by Universities.®

1947 Full-Text Articles 1195 Authors 378200 Downloads 84 Institutions

All Articles in Indian and Aboriginal Law

Faceted Search

1947 full-text articles. Page 1 of 40.

Standing Rock Sioux Tribe V. U.S. Army Corps Of Engineers, Jody D. Lowenstein 2017 Alexander Blewett III School of Law at the University of Montana

Standing Rock Sioux Tribe V. U.S. Army Corps Of Engineers, Jody D. Lowenstein

Public Land and Resources Law Review

The Standing Rock Sioux’s effort to enjoin the U.S. Army Corps of Engineers’ permitting of an oil pipeline was stifled by the United States District Court of the District of Columbia. In denying the preliminary injunction, the court held that the Tribe failed to show that the Corps violated the National Historic Preservation Act, and that the Tribe’s belated effort to litigate was futile after failing to participate in the consultation process.


Waiting For Gluskabe: An Examination Of Maine's Colonialist Legacy Suffered By Native American Tribes Under The Maine Indian Claims Settlement Act Of 1980, Joseph G.E. Gousse 2017 University of Maine School of Law

Waiting For Gluskabe: An Examination Of Maine's Colonialist Legacy Suffered By Native American Tribes Under The Maine Indian Claims Settlement Act Of 1980, Joseph G.E. Gousse

Maine Law Review

Legends of the Wabanaki people tell of a mythical demigod named Gluskabe. Immortalized through the cultural traditions of the Wabanaki—from the Mi’kmaq, Abenaki, and Passamaquoddy to the Maliseet and the Penobscot—Gluskabe appears as an integral component of each tribe’s variation of the Creation Myth, as well as numerous other tales and stories. Most prominently, Gluskabe is known for his role in creating the Penobscot River and divining proportion and harmony in the natural world, using his power to reduce the size of the once-giant land animals to establish the first village, legend holds that Gluskabe retired ...


Complexity's Shadow: American Indian Property, Sovereignty, And The Future, Jessica A. Shoemaker 2017 University of Nebraska College of Law

Complexity's Shadow: American Indian Property, Sovereignty, And The Future, Jessica A. Shoemaker

Michigan Law Review

This Article offers a new perspective on the challenges of the modern American Indian land tenure system. While some property theorists have renewed focus on isolated aspects of Indian land tenure, including the historic inequities of colonial takings of Indian lands, this Article argues that the complexity of today’s federally imposed reservation property system does much of the same colonizing work that historic Indian land policies—from allotment to removal to termination—did overtly. But now, these inequities are largely overshadowed by the daunting complexity of the whole land tenure structure. This Article introduces a new taxonomy of complexity ...


The Right To Counsel For Indians Accused Of Crime: A Tribal And Congressional Imperative, Barbara L. Creel 2017 University of New Mexico School of Law

The Right To Counsel For Indians Accused Of Crime: A Tribal And Congressional Imperative, Barbara L. Creel

Barbara L Creel

Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it ...


The Alliance Between Payday Lenders And Tribes: Are Both Tribal Sovereignty And Consumer Protection At Risk?, Nathalie Martin, Joshua Schwartz 2017 Selected Works

The Alliance Between Payday Lenders And Tribes: Are Both Tribal Sovereignty And Consumer Protection At Risk?, Nathalie Martin, Joshua Schwartz

Nathalie Martin

No abstract provided.


Akiachak Native Community V. United States Department Of Interior, Lillian M. Alvernaz 2017 Alexander Blewett III School of Law at the University of Montana

Akiachak Native Community V. United States Department Of Interior, Lillian M. Alvernaz

Public Land and Resources Law Review

Alaska Native Tribes have long been classified differently than the federally recognized Indian tribes in the rest of the country. The Akiachak decision contributes to the shifting treatment of Alaska Native Tribes and clarifies their relationship with the federal government. The ability to put land into trust is essential to the protection of generations to come and the exercise of sovereign authority. By enabling Alaska Native tribes the ability to petition to put tribally owned fee land in trust, the DOI promotes and encourages tribal self-governance and empowerment.


Free, Prior, And Informed Consent And Reconciliation In Canada: Proposals To Implement Articles 19 And 32 Of The Un Declaration On The Rights Of Indigenous Peoples, Sasha Boutilier 2017 University of Toronto

Free, Prior, And Informed Consent And Reconciliation In Canada: Proposals To Implement Articles 19 And 32 Of The Un Declaration On The Rights Of Indigenous Peoples, Sasha Boutilier

Western Journal of Legal Studies

Canadian Prime Minister Justin Trudeau has repeatedly promised to meet the Indian Residential School Truth and Reconciliation Commission’s recommendation to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as a framework for reconciliation. This commitment is significant as Canada’s position on UNDRIP has been highly contested. In particular, the compatibility of UNDRIP’s Free, Prior, and Informed Consent (FPIC) standard with Canadian law has been repeatedly called into question. This work evaluates the possibility and importance of implementing FPIC in Canada. It begins with an overview of FPIC internationally and of FPIC in relation ...


Consult, Consent, And Veto: International Norms And Canadian Treaties, Shin Imai 2017 Osgoode Hall Law School of York University

Consult, Consent, And Veto: International Norms And Canadian Treaties, Shin Imai

Articles & Book Chapters

Large parts of Canada, from Ontario to parts of British Columbia and north to the Northwest Territories, are covered by the “numbered treaties”, signed between First Nations and the Crown between 1871 and 1929. These treaties provide for the continuation of Indigenous hunting, fishing and harvesting activities until the land is “taken up” by the provincial Crown for activities such as mining, lumbering and settlement. This draft book chapter argues that consent of First Nations should be required before further development that impact on their harvesting rights. The consent standard has already been widely adopted in the private sector both ...


United States V. Washington, Kirsa Shelkey 2016 University of Montana

United States V. Washington, Kirsa Shelkey

Public Land and Resources Law Review

Pacific Northwest Treaties, now known as the Stevens Treaties, were negotiated in the 1850’s between the U.S. and Indian tribes, including the Suquamish Indian Tribe, Jamestown S'Klallam, Lower Elwha Band of Klallams, Port Gamble Clallam, Nisqually Indian Tribe, Nooksack Tribe, Sauk-Suiattle Tribe, Skokomish Indian Tribe, Squaxin Island Tribe, Stillaguamish Tribe, Upper Skagit Tribe, Tulalip Tribes, Lummi Indian Nation, Quinault Indian Nation, Puyallup Tribe, Hoh Tribe, Confederated Tribes and Bands of the Yakama Indian Nation, Quileute Indian Tribe, Makah Indian Tribe, Swinomish Indian Tribal Community, and the Muckleshoot Indian Tribe (“Tribes”). The Stevens Treaties stated that “the right ...


Nuclear Waste And Native America: The Mrs Siting Exercise, M. V. Rajeev Gowda, Doug Easterling 2016 University of New Hampshire

Nuclear Waste And Native America: The Mrs Siting Exercise, M. V. Rajeev Gowda, Doug Easterling

RISK: Health, Safety & Environment

Drs. Gowda & Easterling provide cross-cultural perspectives on issues of risk perception, equity and policy as they affect nuclear waste storage on Native American sites.


Why Coywolf Goes To Court, Signa A. Daum Shanks 2016 Osgoode Hall Law School of York University

Why Coywolf Goes To Court, Signa A. Daum Shanks

Signa A. K. Daum Shanks

This article is an effort influenced by previous works considered part of "trickster" discourse. But unlike other trickster stories meant to illustrate First Nations’ contents and processes, this presentation creates a Métis-specific example of trickster methodology and knowledge. Similar to the historic role Métis individuals have had in Canadian history, this effort contains a type of "translator" system within its citations so that the main story parallels information about trends in Canadian legal analysis. By having this format, it is hoped that those less familiar with Métis courtroom struggles will gain insight into how the pursuit of Métis constitutionalism both ...


Consult, Consent, And Veto: International Norms And Canadian Treaties, Shin Imai 2016 Osgoode Hall Law School of York University

Consult, Consent, And Veto: International Norms And Canadian Treaties, Shin Imai

Shin Imai

Large parts of Canada, from Ontario to parts of British Columbia and north to the Northwest Territories, are covered by the “numbered treaties”, signed between First Nations and the Crown between 1871 and 1929. These treaties provide for the continuation of Indigenous hunting, fishing and harvesting activities until the land is “taken up” by the provincial Crown for activities such as mining, lumbering and settlement. This draft book chapter argues that consent of First Nations should be required before further development that impact on their harvesting rights. The consent standard has already been widely adopted in the private sector both ...


'In A Settled Country, Everyone Must Eat': Four Questions About Transnational Private Regulation, Migration, And Migrant Work, Amar Bhatia 2016 Osgoode Hall Law School of York University

'In A Settled Country, Everyone Must Eat': Four Questions About Transnational Private Regulation, Migration, And Migrant Work, Amar Bhatia

Amar Bhatia

This introduction speaks to one of the questions raised by transnational private regulation: is migration always transnational? One quick answer to this question might be ‘no’. If migration is concerned with the international movement of people, then what has been called the approach of methodological nationalism would force out the ‘trans-­‐’ and always substitute the international. Since methodological nationalism is an approach characterized by an overdue emphasis on states and their external borders as the sole arbiters for what registers as movement, then this answer would not surprise anyone. However, if we do not take a monopolistic approach to borders ...


We Are All Here To Stay? Indigeneity, Migration, And ‘Decolonizing’ The Treaty Right To Be Here, Amar Bhatia 2016 Osgoode Hall Law School of York University

We Are All Here To Stay? Indigeneity, Migration, And ‘Decolonizing’ The Treaty Right To Be Here, Amar Bhatia

Amar Bhatia

This article examines issues of transnational migration in the settler-colonial context of Canada. First, I review some of the recent debates about foregrounding Indigeneity and decolonization in anti-racist thought and work, especially in relation to critical and anti-racist approaches to migration. The article then moves from this debate to the question of ‘our right to be here’, the relationship of this right to the treaties, and how migrant rights and treaty relations perspectives might interact in a context that must be informed by Indigenous laws and legal traditions.


'Prisoner Never Gave Me Anything For What He Done:' Aboriginal Voices In The Criminal Court, Shelley A. M. Gavigan 2016 Osgoode Hall Law School of York University

'Prisoner Never Gave Me Anything For What He Done:' Aboriginal Voices In The Criminal Court, Shelley A. M. Gavigan

Shelley A. M. Gavigan

Aboriginal people participated in different ways in the criminal process in the early years of the North-West Territories region of Canada, including, as accused persons, as Informants, and as witnesses. Their physical participation was often mediated by interpreters, both linguistic and cultural, and their signatures invariably marked “X” on their depositions. Scholarship that has examined the relationship of Aboriginal peoples to the criminal law has tended to interrogate the criminalization and moral regulation strategies implicit in the process of colonization and domination of the First Peoples. This paper will discuss less visible aspects of the legalized processes of colonization: (1 ...


Oral Tradition And The Kennewick Man, Cathay Y. N. Smith 2016 Alexander Blewett III School of Law at the University of Montana

Oral Tradition And The Kennewick Man, Cathay Y. N. Smith

Faculty Law Review Articles

No abstract provided.


Getches-Wilkinson Center Newsletter, Fall 2016, University of Colorado Boulder. Getches-Wilkinson Center for Natural Resources, Energy, and the Environment 2016 University of Colorado Law School

Getches-Wilkinson Center Newsletter, Fall 2016, 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.


Indigenous Lawyers In Canada: Identity, Professionalization, Law, Sonia Lawrence, Signa A. Daum Shanks 2016 Osgoode Hall Law School of York University

Indigenous Lawyers In Canada: Identity, Professionalization, Law, Sonia Lawrence, Signa A. Daum Shanks

Sonia Lawrence

For Indigenous communities and individuals in Canada, "Canadian" law has been a mechanism of assimilation, colonial governance and dispossession, a basis for the assertion of rights, and a method of resistance. How do Indigenous lawyers in Canada make sense of these contradictory threads and their roles and responsibilities? This paper urges attention to the lives and experiences of Indigenous lawyers, noting that the number of self-identified Indigenous lawyers has been rapidly growing since the 1990s. At the same time, Indigenous scholars are focusing on the work of revitalizing Indigenous law and legal orders. Under these conditions, Indigenous lawyers occupy a ...


Indigenous Lawyers In Canada: Identity, Professionalization, Law, Sonia Lawrence, Signa A. Daum Shanks 2016 Osgoode Hall Law School of York University

Indigenous Lawyers In Canada: Identity, Professionalization, Law, Sonia Lawrence, Signa A. Daum Shanks

Signa A. K. Daum Shanks

For Indigenous communities and individuals in Canada, "Canadian" law has been a mechanism of assimilation, colonial governance and dispossession, a basis for the assertion of rights, and a method of resistance. How do Indigenous lawyers in Canada make sense of these contradictory threads and their roles and responsibilities? This paper urges attention to the lives and experiences of Indigenous lawyers, noting that the number of self-identified Indigenous lawyers has been rapidly growing since the 1990s. At the same time, Indigenous scholars are focusing on the work of revitalizing Indigenous law and legal orders. Under these conditions, Indigenous lawyers occupy a ...


“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 2016 Lakehead University

“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

Osgoode Hall Law Journal

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 ...


Digital Commons powered by bepress