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Indian and Aboriginal Law Commons

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Preview—United States Forest Service V. Cowpasture River Preservation Association: Can The Pipeline Cross The Trail?, Alizabeth Bronsdon 2020 Alexander Blewett III School of Law at the University of Montana

Preview—United States Forest Service V. Cowpasture River Preservation Association: Can The Pipeline Cross The Trail?, Alizabeth Bronsdon

Public Land & Resources Law Review

The Supreme Court of the United States will hear oral argument in this matter on Monday, February 24, 2020, at 10 a.m. in the Supreme Court Building in Washington, D.C. Anthony Yang, Assistant to the Solicitor General, will likely argue for the United States. In a divided oral argument, Paul D. Clement will likely appear for Atlantic Coast Pipeline, LLC, the petitioner in consolidated case No. 18-1587, Atlantic Coast Pipeline, LLC v. Cowpasture River Preservation Association. Michael K. Kellogg will likely appear for the Respondents.


Waived: The Detrimental Implications Of U.S. Immigration And Border Security Measures On Southern Border Tribes – An Analysis Of The Impact Of President Trump’S Border Wall On The Tohono O’Odham Nation, Keegan C. Tasker 2019 Seattle University School of Law

Waived: The Detrimental Implications Of U.S. Immigration And Border Security Measures On Southern Border Tribes – An Analysis Of The Impact Of President Trump’S Border Wall On The Tohono O’Odham Nation, Keegan C. Tasker

American Indian Law Journal

No abstract provided.


􏰀Enough􏰁S Enough􏰂: Protest Law And The Tradition Of Chilling Indigenous Free Speech, Alix H. Bruce 2019 American University Washington College of Law

􏰀Enough􏰁S Enough􏰂: Protest Law And The Tradition Of Chilling Indigenous Free Speech, Alix H. Bruce

American Indian Law Journal

Indigenous peoples in the United States were not granted the full scope of their rights as citizens under the Constitution until the enactment of the Indian Citizenship Act of 1924. Before that—and after—several state and federal campaigns worked to stifle the civil rights of Indigenous peoples. Many of those unjust and unconstitutional policies were upheld by the Supreme Court. In the current era, the anti-pipeline protests on the edge of the Standing Rock Sioux Reservation in North Dakota sparked a new recognition of Indigenous resistance under the First Amendment—and vicious state and federal backlash against Indigenous free ...


Green Means Go: Tribes Rush To Regulate Cannabis In Indian Country, Julie Kim, Jessica Roberts 2019 Seattle University School of Law

Green Means Go: Tribes Rush To Regulate Cannabis In Indian Country, Julie Kim, Jessica Roberts

American Indian Law Journal

During the Obama administration, the United States Department of Justice (DOJ) issued a series of memos stating that the federal government would not interfere with state laws legalizing cannabis. The United States Attorney General later expressly extended this policy to Indian Country. As a result, tribes began debating potential advantages and disadvantages of participating in the cannabis market. Then, in January 2018, the DOJ rescinded the memos and publicly recommitted itself to prosecuting the possession, cultivation, and distribution of marijuana. Consequently, tribes should approach “The Green Rush” as an exercise of their sovereignty; when a tribe decides to legalize or ...


Case Law On American Indians August 2018-2019, Thomas P. Schlosser 2019 Seattle University School of Law

Case Law On American Indians August 2018-2019, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.


The Flourishing Race: How The Success Of American Indian Artist-Entrepreneurs Underscores The Need For Enhanced Legal Protections For Native Intellectual Property, Jessica Roberts 2019 Seattle University School of Law

The Flourishing Race: How The Success Of American Indian Artist-Entrepreneurs Underscores The Need For Enhanced Legal Protections For Native Intellectual Property, Jessica Roberts

American Indian Law Journal

No abstract provided.


Fighting On Behalf Of The Salish Sea, Cloie M. Chapman 2019 Seattle University School of Law

Fighting On Behalf Of The Salish Sea, Cloie M. Chapman

American Indian Law Journal

Despite the wealth of data that suggests climate change will disrupt our ecosystems, key political actors have declined to take action to mitigate the anticipated effects. Further, we have seen deeper investment into the fossil fuel industry, an industry that has been a substantial contributor to climate change. Community-led movements have proven more successful in engaging with these issues on the ground. Creative legal strategies could aid in this movement and allow for strengthened enforcement of rights that are closely dependent on the health of the environment.

The Salish Sea is a body of water that reaches from Western Canada ...


Aboriginal Rights And Constitutional Conflict: The Marshall Court, State And Federal Sovereignty, And Native American Rights Under The 1789 Constitution, Guy Charlton 2019 University of New England (Australia)

Aboriginal Rights And Constitutional Conflict: The Marshall Court, State And Federal Sovereignty, And Native American Rights Under The 1789 Constitution, Guy Charlton

American Indian Law Journal

No abstract provided.


Nothing Is Over: Ftca Claims For Toxic Torts On Native Lands, Jessica Ditmore 2019 Seattle University School of Law

Nothing Is Over: Ftca Claims For Toxic Torts On Native Lands, Jessica Ditmore

American Indian Law Journal

In 1976, Congress passed the Resource Conservation and Recovery Act (“RCRA”) to curtail the growing problem of disposing of hazardous waste and toxic substances generally. Decades prior, Congress established the Federal Tort Claims Act (“FTCA”) to hold the federal Government liable for tortious conduct the same way a private citizen would be. The federal government assumed the responsibility to ensure the wellbeing of Native Nations (“NN”). This is commonly referred to the “Trust Doctrine.” This duty stems from the settlement of Native American lands, and a recognition of the treaties entered into by the United States with a “moral [obligation ...


Preview—Atlantic Richfield Company V. Christian: The Intersection Of Superfund And State-Law Restoration Claims, Emily M. McCulloch 2019 Alexander Blewett III School of Law at the University of Montana

Preview—Atlantic Richfield Company V. Christian: The Intersection Of Superfund And State-Law Restoration Claims, Emily M. Mcculloch

Public Land & Resources Law Review

The Supreme Court of the United States will hear oral arguments in this matter on Tuesday, December 3, 2019, at 11:00 a.m. in the Supreme Court Building in Washington, D.C. Lisa S. Blatt will likely appear for the Petitioner. Joseph R. Palmore will likely appear for the Respondents. Solicitor General Noel J. Francisco will likely argue on behalf of the United States.


Owning Geronimo But Not Elmer Mccurdy: The Unique Property Status Of Native American Remains, Alix Rogers 2019 Stanford Law School

Owning Geronimo But Not Elmer Mccurdy: The Unique Property Status Of Native American Remains, Alix Rogers

Boston College Law Review

This Article unifies two areas of legal scholarship that have not historically intersected. In the fields of biotechnology and the law, it is generally understood that human remains and many body parts are not objects of legal property. This general rule has a startling exception, which heretofore has gone unnoticed in the literature and relevant case law. The bodily remains of Native Americans were, and I argue, continue to be, objects of legal property. With the passage of the Native American Graves Protection and Repatriation Act of 1990 (“NAGPRA”) Native American remains are classified as familial and tribal property. In ...


Judicial Treatment Of Aboriginal Peoples’ Oral History Evidence: More Room For Reconciliation, Jimmy Peterson 2019 Dalhousie University, Schulich School of Law

Judicial Treatment Of Aboriginal Peoples’ Oral History Evidence: More Room For Reconciliation, Jimmy Peterson

Dalhousie Law Journal

Oral history is the only past record in many Aboriginal groups in Canada. In 1997, in Delgamuukw, the Supreme Court of Canada recognized that the strict approach to evidence law with respect to oral history had to be relaxed for Aboriginal peoples to be able to pursue claims to Aboriginal rights or Aboriginal title. This was a necessary element of the attempt to achieve reconciliation between Aboriginal and non-Aboriginal peoples. Yet, while evidence law has become increasingly n exible when it comes to accommodating Aboriginal peoples, courts have struggled with how to value oral traditions. A review of the case ...


Disrupting Business As Usual: Considering Teaching Methods In Business Law Classrooms, Jeffery Hewitt, Shanthi E. Senthe 2019 University of Windsor, Faculty of Law

Disrupting Business As Usual: Considering Teaching Methods In Business Law Classrooms, Jeffery Hewitt, Shanthi E. Senthe

Dalhousie Law Journal

The Truth and Reconciliation Commission of Canada (TRC)’s Calls to Action propose signimcant changes to legal education. No law school classroom is exempt, including business law courses. We are two of a growing number ofscholars in the legal academy actively incorporating Indigenous laws, critical race theory and socio-economic perspectives into business law courses as part of our responses to the TRC. This paper explores a field school we developed at Windsor Law as a response to the Calls to Action. In a temporary fusion of two courses, Secured Transactions along with Indigenous Peoples, Art & Human Rights, a synergy emerges ...


Canada's Fiduciary Obligation To Aboriginal Peoples In The Context Of Accession To Sovereignty By Quebec, Volume 2: Domestic Dimensions, Renée Dupuis, Kent McNeil 2019 Osgoode Hall Law School of York University

Canada's Fiduciary Obligation To Aboriginal Peoples In The Context Of Accession To Sovereignty By Quebec, Volume 2: Domestic Dimensions, Renée Dupuis, Kent Mcneil

Kent McNeil

The Royal Commission on Aboriginal Peoples was established on 26 August 1991 by Order in Council P.C. 1991-1597 with the following mandate: "The Commission of Inquiry should investigate the evolution of the relationship among aboriginal peoples (Indian, Inuit and Métis), the Canadian government, and Canadian society as a whole. It should propose specific solutions, rooted in domestic and international experience, to the problems which have plagued those relationships and which confront aboriginal peoples today. The Commission should examine all issues which it deems to be relevant to any or all of the aboriginal peoples of Canada..." (P.C. 1991-1597)


Defining Aboriginal Title In The 90'S: Has The Supreme Court Finally Got It Right?, Kent McNeil 2019 Osgoode Hall Law School of York University

Defining Aboriginal Title In The 90'S: Has The Supreme Court Finally Got It Right?, Kent Mcneil

Kent McNeil

The arrival of Europeans in North America had a profound impact on the Aboriginal peoples who had been living here for thousands of years. Virtually everything changed: unfamiliar diseases like smallpox ravished the population; the fur trade and European settlement and resource use decimated the wildlife; new technology such as firearms altered Aboriginal economies and tribal relations; Christian evangelism affected spiritual beliefs and values; European imposition of sovereignty and governmental structures weakened, and in some cases replaced, Aboriginal forms of government; and so on. But more than anything else, the taking of Aboriginal lands by Europeans has probably had the ...


Wildearth Guardians V. Zinke, Emily M. McCulloch 2019 Alexander Blewett III School of Law at the University of Montana

Wildearth Guardians V. Zinke, Emily M. Mcculloch

Public Land & Resources Law Review

WildEarth Guardians v. Zinke marks an important decision prompting the Bureau of Land Management to seriously consider greenhouse gas emissions when performing environmental assessments for oil and gas leasing. WildEarth Guardians and Physicians for Social Responsibility, two non-profit organizations, asserted BLM improperly failed to recognize greenhouse gas emissions and their impacts on climate change when issuing oil and gas leases in three western states. The United States District Court for the District of Columbia agreed, finding that by failing to take a hard look at environmental impacts from its leasing decisions, BLM violated the National Environmental Policy Act’s requirements.


Citizens For Clean Energy V. United States Department Of The Interior, Anthony Reed 2019 lexander Blewett III School of Law at the University of Montana

Citizens For Clean Energy V. United States Department Of The Interior, Anthony Reed

Public Land & Resources Law Review

In 2017, Secretary of the Interior Ryan Zinke issued a new order lifting the previous administration’s 2016 Jewell Order that had placed a moratorium on mineral leases until a programmatic EIS was completed. The new order repealed the moratorium, cancelled the programmatic EIS, and instructed the BLM to expedite new mineral lease applications. Several plaintiffs challenged Zinke’s order, and the United States District Court for the District of Montana ruled that it was a major federal action that triggered NEPA analysis and that the agency acted arbitrarily and capriciously when it issued the order without any environmental review.


The Source, Nature, And Content Of The Crown’S Underlying Title To Aboriginal Title Lands, Kent Mcneil 2019 Osgoode Hall Law School of York University

The Source, Nature, And Content Of The Crown’S Underlying Title To Aboriginal Title Lands, Kent Mcneil

Kent McNeil

The highest courts in Australia, Canada, and New Zealand have consistently held that the Crown has the underlying title to Aboriginal title lands. The United States Supreme Court has likewise concluded that either the federal or state governments have the underlying title to Indian lands. However, the source, nature, and content of this title remain obscure. This article will examine the relevant case law and contend that, in Canada, the Crown’s underlying title is a purely proprietary interest that does not amount to a current beneficial interest and does not entail any jurisdictional authority. It is sourced in the ...


Sovereignty And Indigenous Peoples In North America, Kent Mcneil 2019 Osgoode Hall Law School of York University

Sovereignty And Indigenous Peoples In North America, Kent Mcneil

Kent McNeil

This article examines the concept of sovereignty and its application in the context of European colonization of North America. It seeks to define sovereignty so as to avoid Eurocentric notions that denied sovereignty to Indigenous peoples. The article does this by distinguishing between defacto and de jure sovereignty: the former depends on actual possession and control of a territory, whereas the latter depends on the application of a particular legal system. Unlike de facto sovereignty, which is empirical, de jure sovereignty depends on a choice of law. Because more than one legal system can be applied to territories occupied by ...


Preview—Murray V. Bej Minerals, Llc: Finding A Home For Fossils, Layne L. Ryerson 2019 Alexander Blewett III School of Law at the University of Montana

Preview—Murray V. Bej Minerals, Llc: Finding A Home For Fossils, Layne L. Ryerson

Public Land & Resources Law Review

The Montana Supreme Court will hear oral arguments in this matter on Thursday, November 7, 2019 at 9:30 AM in the courtroom of the Montana Supreme Court, Joseph P. Mazurek Building, Helena, Montana. The Honorable Olivia Rieger will hear the case in place of Justice Jim Rice, who recused himself. Eric B. Wolff is expected to argue for the Appellants. Harlan B. Krogh is expected to argue for the Appellees.


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