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Indigenous Territorial Rights In The Common Law, Kent McNeil 2016 Osgoode Hall Law School of York University

Indigenous Territorial Rights In The Common Law, Kent Mcneil

Kent McNeil

This chapter compares Indigenous territorial rights in the United States, Canada, Australia and New Zealand thematically under four headings: the sources, nature and content, proof, and protection of Indigenous rights. The first two are closely linked, as the nature and content of Indigenous rights are determined largely by their sources. Likewise, proof of Indigenous rights also depends on their sources. The protection they are accorded in any particular nation-state depends mainly on its constitution, with recent additional protection emerging in international law. The major premise of the chapter is that Indigenous rights are territorial, encompassing real property rights and governmental ...


Ancestral Lands, Alien Laws: Judicial Perspectives On Aboriginal Title, Brian Slattery 2016 Osgoode Hall Law School of York University

Ancestral Lands, Alien Laws: Judicial Perspectives On Aboriginal Title, Brian Slattery

Brian Slattery

This monograph examines critically the various ways in which Commonwealth and American judges have dealt with the issue of the land rights of Aboriginal peoples in the past. It devotes particular attention to the doctrine of Aboriginal title developed by Chief Justice Marshall of the United States Supreme Court. The nature and legal basis of that doctrine are reviewed in detail, and the relevance of the doctrine to Canadian and Commonwealth jurisdictions is explored.


The Generative Structure Of Aboriginal Rights, Brian Slattery 2016 Osgoode Hall Law School of York University

The Generative Structure Of Aboriginal Rights, Brian Slattery

Brian Slattery

Are aboriginal rights historical rights -- rights that gained their basic form in the distant past? Or are they generative rights -- rights that, although rooted in the past, have the capacity to renew themselves, as organic entities that grow and change? Section 35(1) of the Constitution Act, 1982 provides little guidance on the point, referring ambiguously to "existing aboriginal and treaty rights". In the Van der Peet case, decided in 1996, the Supreme Court of Canada characterized aboriginal rights primarily as historical rights, moulded by the customs and practices of aboriginal groups at the time of European contact, with only ...


The Generative Structure Of Aboriginal Rights, Brian Slattery 2016 Osgoode Hall Law School of York University

The Generative Structure Of Aboriginal Rights, Brian Slattery

Brian Slattery

Are aboriginal rights historical rights -- rights that gained their basic form in the distant past? Or are they generative rights -- rights that, although rooted in the past, have the capacity to renew themselves, as organic entities that grow and change? Section 35(1) of the Constitution Act, 1982 provides little guidance on the point, referring ambiguously to "existing aboriginal and treaty rights". In the Van der Peet case, decided in 1996, the Supreme Court of Canada characterized aboriginal rights primarily as historical rights, moulded by the customs and practices of aboriginal groups at the time of European contact, with only ...


Aboriginal Title And Indigenous Governance: Identifying The Holders Of Rights And Authority, Kent McNeil 2016 Osgoode Hall Law School of York University

Aboriginal Title And Indigenous Governance: Identifying The Holders Of Rights And Authority, Kent Mcneil

Kent McNeil

In this paper, I am going to discuss three categories of decisions: (1) Aboriginal title cases; (2) Aboriginal rights cases apart from title; and (3) duty to consult cases. My focus is mainly on Supreme Court decisions involving First Nation Indigenous people arising in non-treaty areas. The issue of the identity of Aboriginal title and rights holders can also arise in cases involving the Inuit and the Métis, but there is a scarcity of case law on the issue where the Inuit are concerned, and the unique circumstances of the Métis and the current length of this paper led me ...


The Jurisdiction Of Inherent Right Aboriginal Governments, Kent McNeil 2016 Osgoode Hall Law School of York University

The Jurisdiction Of Inherent Right Aboriginal Governments, Kent Mcneil

Kent McNeil

Since the recognition of Aboriginal and treaty rights in Canada by section 35(1) of the Constitution Act, 1982, the inherent right of the Aboriginal peoples to govern themselves has become a generally accepted aspect of Canadian constitutional law. But what is the scope of the governmental authority, or jurisdiction, that is exercisable by inherent right Aboriginal governments? And how does the jurisdiction of Aboriginal governments interact with the jurisdiction of other governments in Canada, especially the federal and provincial governments? This research paper will attempt to answer these questions in a general way, without attempting to determine or assess ...


La Relativité De La Souveraineté De Jure Au Canada, 1600-2016, Kent McNeil 2016 Osgoode Hall Law School of York University

La Relativité De La Souveraineté De Jure Au Canada, 1600-2016, Kent Mcneil

Kent McNeil

This paper was presented at the Conference "Les Souverainetés Indigènes" which occurred at the University of Nantes, March 24-26, 2016. A programme is available through perma.cc (link opens in new tab).


Indigenous Self-Determination And The State, Shin Imai 2016 Selected Works

Indigenous Self-Determination And The State, Shin Imai

Shin Imai

The right of indigenous self-determination is now accepted at both the national and international level, but the exercise of the right to self-determination does not connote any specific institutional arrangement. This chapter, from the forthcoming book, Indigenous Peoples and the Law: Comparative and Critical Perspectives (Hart Publishing, Oxford), describes a variety of arrangements in Australia, Canada, New Zealand and the United States. Indigenous people have the greatest political autonomy in the sovereignty/self-government model found in the United States and in the latest self government agreements from Canada. The self- administration/self-management model provides for indigenous entities to deliver social ...


Family Violence In Kuujjuaq: Interviews With Kuujjuamiut, Susan G. Drummond 2016 Osgoode Hall Law School of York University

Family Violence In Kuujjuaq: Interviews With Kuujjuamiut, Susan G. Drummond

Susan G. Drummond

No abstract provided.


Emulsified Property, Jessica A. Shoemaker 2016 Pepperdine University

Emulsified Property, Jessica A. Shoemaker

Pepperdine Law Review

The typical American Indian reservation is often described as a “checkerboard” of different real property ownership forms. Individual parcels of reservation land may be held in either a special federal Indian trust status or in fee, by either Indian or non-Indian owners. The general jurisdictional framework provides that federal and sometimes tribal law sets the rights and responsibilities of trust owners, while fee owners are subject to a peculiar mix of state and tribal law. Many scholars have analyzed the challenges created by this checkerboard pattern of property and jurisdiction. This Article, however, reveals an even more complicated issue that ...


Agenda: Coping With Water Scarcity In River Basins Worldwide: Lessons Learned From Shared Experiences, University of Colorado Boulder. Getches-Wilkinson Center for Natural Resources, Energy, and the Environment 2016 University of Colorado Law School

Agenda: Coping With Water Scarcity In River Basins Worldwide: Lessons Learned From Shared Experiences, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Water scarcity is increasingly dominating headlines throughout the world. In the southwestern USA, the looming water shortages on the Colorado River system and the unprecedented drought in California are garnering the greatest attention. Similar stories of scarcity and crisis can be found across the globe, suggesting an opportunity for sharing lessons and innovations. For example, the Colorado River and Australia's Murray-Darling Basin likely can share many lessons, as both systems were over-allocated, feature multiple jurisdictions, face similar climatic risks and drought stresses, and struggle to balance human demands with environmental needs. In this conference we cast our net broadly ...


Looking To The Third Sovereign: Tribal Environmental Ethics As An Alternative Paradigm, Elizabeth Ann Kronk Warner 2016 Tribal Law and Government Center

Looking To The Third Sovereign: Tribal Environmental Ethics As An Alternative Paradigm, Elizabeth Ann Kronk Warner

Pace Environmental Law Review

This article considers what role, if any, can tribal environmental ethics play in the re-examination and consideration of American environmental ethics? The answer—quite a substantial role. Tribes must straddle two worlds—a traditional one and one dominated by Western culture and values. As a result of this dichotomy, tribes are necessarily experts at adaptation and innovation. To demonstrate the value of looking to tribal environmental ethics when considering alternative ethical paradigms for the United States, this article begins by discussing the link between environmental ethics and policy making. With this understanding in place, the article then examines the importance ...


Agenda: Indigenous Water Justice Symposium, University of Colorado Boulder. Getches-Wilkinson Center for Natural Resources, Energy, and the Environment 2016 University of Colorado Law School

Agenda: Indigenous Water Justice Symposium, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Indigenous Water Justice Symposium (June 6)

Indigenous peoples throughout the world face diverse and often formidable challenges of what might be termed “water justice.” On one hand, these challenges involve issues of distributional justice that concern Indigenous communities’ relative abilities to access and use water for self-determined purposes. On the other hand, issues of procedural justice are frequently associated with water allocation and management, encompassing fundamental matters like representation within governance entities and participation in decision-making processes. Yet another realm of water justice in which disputes are commonplace relates to the persistence of, and respect afforded to, Indigenous communities’ cultural traditions and values surrounding water—more ...


Aboriginal Title And Indigenous Governance: Identifying The Holders Of Rights And Authority, Kent McNeil 2016 Osgoode Hall Law School of York University

Aboriginal Title And Indigenous Governance: Identifying The Holders Of Rights And Authority, Kent Mcneil

All Papers

Aboriginal rights, including Aboriginal title to land, are communal rights that are vested in Indigenous collectivities that are connected to the specific Indigenous groups that occupied and used land prior to European colonization of Canada. Identifying the present-day collectivities that hold these rights is therefore essential. This research paper examines the jurisprudence on this matter in relation to three categories of court decisions: Aboriginal title cases, Aboriginal rights cases apart from title, and duty to consult cases. Analysis of the case law reveals that identification of current rights holders is treated as a matter of fact that depends in part ...


What Should Tribes Expect From Federal Regulations? The Bureau Of Land Management’S Fracking Rule And The Problems With Treating Indian And Federal Lands Identically, Monte Mills 2016 Alexander Blewett III School of Law at the University of Montana

What Should Tribes Expect From Federal Regulations? The Bureau Of Land Management’S Fracking Rule And The Problems With Treating Indian And Federal Lands Identically, Monte Mills

Public Land and Resources Law Review

The federal government’s various Indian policies create a number of boundaries across which Indian tribes must negotiate to ensure successful management of their natural resources. For example, the removal, reservation, and treaty-making period of the late 18th and early 19th Centuries created territorial boundaries that, for many tribes, did not align with their traditional homelands. Thereafter, allotment of many of the resulting tribal reservations decimated the tribal land base and left a checkerboard ownership pattern of land within many reservations. More recent decisions of the United States Supreme Court have limited tribal authority over the non-Indian owned squares on ...


Protecting Traditional Water Resources: Legal Options For Preserving Tribal Non-Consumptive Water Use, Julia Guarino 2016 University of Colorado Law School

Protecting Traditional Water Resources: Legal Options For Preserving Tribal Non-Consumptive Water Use, Julia Guarino

Public Land and Resources Law Review

The law governing the quantification and use of tribal water rights is complex and inconsistent, creating major challenges for tribes working to gain control over and make use of their water resources. There are even greater challenges a tribe must overcome if it wishes to safeguard non- consumptive water uses not generally protected under Western water law regimes. Non-consumptive water uses include any use that does not require removing water from the natural water body. Such uses include protecting in-stream water flows for fisheries, riparian habitat, traditional plants, ceremonial uses, or recreation. There are legal tools available to tribes, however ...


“Salmon Is Culture, And Culture Is Salmon”: Reexamining The Implied Right To Habitat Protection As A Tool For Cultural And Ecological Preservation, Wesley J. Furlong 2016 Alexander Blewett III School of Law at the University of Montana

“Salmon Is Culture, And Culture Is Salmon”: Reexamining The Implied Right To Habitat Protection As A Tool For Cultural And Ecological Preservation, Wesley J. Furlong

Public Land and Resources Law Review

No abstract provided.


A Sacred Responsibility: Governing The Use Of Water And Related Resources In The International Columbia Basin Through The Prism Of Tribes And First Nations, Matthew J. McKinney, Richard Kyle Paisley, Molly Smith Stenovec 2016 University of Montana

A Sacred Responsibility: Governing The Use Of Water And Related Resources In The International Columbia Basin Through The Prism Of Tribes And First Nations, Matthew J. Mckinney, Richard Kyle Paisley, Molly Smith Stenovec

Public Land and Resources Law Review

In the fall of 2012, leaders from Columbia Basin First Nations and tribes participated, along with about 150 other people, in the 4th transboundary symposium convened by the Universities Consortium on Columbia River Governance. Gathered on the shores of Flathead Lake in Polson, Montana, the participants explored the interests, rights, roles, and responsibilities of indigenous people in the international Columbia River Basin. This symposium generated two notable outcomes: first, The Columbia River Basin: A Sense of the Future—a synthesis of interests and concerns with regard to the future of the transboundary river basin as captured by the Universities Consortium ...


A Tiny Fish And A Big Problem: Natives, Elvers, And The Maine Indian Claims Settlement Act Of 1980, John Sanders 2016 College of William & Mary Law School

A Tiny Fish And A Big Problem: Natives, Elvers, And The Maine Indian Claims Settlement Act Of 1980, John Sanders

William & Mary Law Review

No abstract provided.


Abraham Lincoln And The Dakota War In Academic And Popular Literature, Larry D. Mansch 2016 University of Montana

Abraham Lincoln And The Dakota War In Academic And Popular Literature, Larry D. Mansch

Madison Historical Review

While the Civil War all but consumed Abraham Lincoln’s presidency, at least one other military matter caught his attention. The 1862 Dakota War in Minnesota resulted in the deaths of 358 white settlers, 106 United States soldiers, and 29 Dakota warriors. When the fighting ended hundreds of Indians were placed in prisoner camps, and after sham trials nearly 400 warriors were sentenced to death. Military leaders, politicians, and an enraged citizenry demanded that Lincoln order swift executions. Seeking to balance a sense of justice against the public’s insistence for revenge, Lincoln examined the trial records of each of ...


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