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

Indian and Aboriginal Law Commons

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

2132 Full-Text Articles 1459 Authors 493966 Downloads 96 Institutions

All Articles in Indian and Aboriginal Law

Faceted Search

2132 full-text articles. Page 4 of 47.

Lewis V. Clarke, Lillian M. Alvernaz 2017 Alexander Blewett III School of Law at the University of Montana

Lewis V. Clarke, Lillian M. Alvernaz

Public Land and Resources Law Review

The nation to nation relationship between tribes and the federal government is unique. Within that relationship, the federal government acknowledges and respects tribal sovereignty. An important aspect of sovereignty is sovereign immunity. Lewis v. Clarke confronts the applicability of sovereign immunity through an extension of tribal sovereignty over an employee defendant. After having heard oral argument, the United States Supreme Court could either reaffirm or severely limit the applicability of tribal sovereign immunity to “arms” of a tribe. While the lower court analyzed tribal sovereign immunity by considering the damages sought, the Supreme Court opinion portends to extend far beyond ...


San Manuel'S Second Exception: Identifying Treaty Provisions That Support Tribal Labor Sovereignty, Briana Green 2017 University of Michigan Law School

San Manuel'S Second Exception: Identifying Treaty Provisions That Support Tribal Labor Sovereignty, Briana Green

Michigan Journal of Environmental & Administrative Law

Inspired by the holding in WinStar World Casino, this Note considers the potential for tribes to make treaty-based arguments when facing the threat of National Labor Relations Board jurisdiction. This Note presents the results of a survey of U.S. government treaties with Native Americans to identify those treaties with language similar to that interpreted by the Board in WinStar World Casino. The survey identified four treaties and four tribes that could make treaty-based arguments like those made in Winstar World Casino: the Confederated Tribes of the Umatilla Indian Reservation, the Muscogee (Creek) Nation, the Seminole Nation of Oklahoma, and ...


Returning To The Tribal Environmental "Laboratory": An Examination Of Environmental Enforcement Techniques In Indian Country, Elizabeth Ann Kronk Warner 2017 University of Kansas School of Law

Returning To The Tribal Environmental "Laboratory": An Examination Of Environmental Enforcement Techniques In Indian Country, Elizabeth Ann Kronk Warner

Michigan Journal of Environmental & Administrative Law

Governments, including tribes, need to protect one of humankind’s most valuable resources: the environment. In addition to environmental regulations, effective enforcement mechanisms are key to successful efforts to protect the environment. While much has been written about the environmental enforcement mechanisms of states and the federal government, little scholarly attention has been paid to how tribal governments are working to protect their environments. Given that there are 567 federally recognized tribes and approximately 56.2 million acres held in trust for tribes in the United States, such oversight is significant. This Article fills a scholarly void with a description ...


We Need Protection From Our Protectors: The Nature, Issues, And Future Of The Federal Trust Responsibility To Indians, Daniel I.S.J. Rey-Bear, Matthew L.M. Fletcher 2017 Rey-Bear McLaughlin, LLP

We Need Protection From Our Protectors: The Nature, Issues, And Future Of The Federal Trust Responsibility To Indians, Daniel I.S.J. Rey-Bear, Matthew L.M. Fletcher

Michigan Journal of Environmental & Administrative Law

The federal trust responsibility to Indians essentially entails duties of good faith, loyalty, and protection. While often thought of as unique to federal Indian policy, it developed from and reflects common law principles of contracts, property, trusts, foreign relations/international law, and constitutional law. However, several issues preclude a greater understanding and implementation of the federal trust responsibility. These include Executive Branch efforts to avoid liability, neocolonial judicial activism, and episodic congressional attention. Enactment of legislation to reaffirm and modernize the federal trust responsibility through greater self-determination, integration, elevation, oversight, and funding should help overcome these issues to improve federal ...


Exploring Alternatives To The "Consultation Or Consent" Paradigm, Jason Searle 2017 University of Michigan Law School

Exploring Alternatives To The "Consultation Or Consent" Paradigm, Jason Searle

Michigan Journal of Environmental & Administrative Law

The Dakota Access Pipeline brought the question of what adequate tribal consultation requires to the forefront. Some would argue that consultation is a weak standard and that only adopting a new standard of free, prior, and informed consent can guarantee tribes greater control and respect. However, the “consultation or consent” paradigm does not take into account important sources of law that do not fit under “consultation” or “consent” and yet could be valuable in strengthening tribes’ claims in the absence of a consent standard.


Whose Standards Control? Maine V. Mccanhy And The Federal, State, And Tribal Battle Over Water Quality Regulation, Joseph Paul Mortelliti 2017 University of Connecticut School of Law

Whose Standards Control? Maine V. Mccanhy And The Federal, State, And Tribal Battle Over Water Quality Regulation, Joseph Paul Mortelliti

Michigan Journal of Environmental & Administrative Law

This Note considers the longstanding clash between the United States government and state governments over the management of intrastate waters through the lens of Maine v. McCarthy, an ongoing federal lawsuit. McCarthy confronts whether the United States Environmental Protection Agency can require state water quality standards to specifically safeguard the health and cultural practices of Maine’s Indian tribes, particularly sustenance fishing. A panoply of legal and political factors gave rise to and shaped the course of the litigation, ranging from tribal sovereignty to agency discretion and political gamesmanship. After evaluating the litigants’ arguments and examining previous regulatory collisions between ...


The Indigenous As Alien, Leti Volpp 2017 UC Berkeley Law

The Indigenous As Alien, Leti Volpp

Leti Volpp

No abstract provided.


Valuing Sacred Tribal Waters Within Prior Appropriation, Michelle Bryan 2017 University of Montana School of Law

Valuing Sacred Tribal Waters Within Prior Appropriation, Michelle Bryan

Natural Resources Journal

Throughout the world water plays a central role in the spirituality of indigenous peoples. Focusing on the American West, this article first describes how tribal water needs touch upon the sacred and then explains how both federal law and state prior appropriation doctrine fail to adequately protect these important sacred views of water. Pivoting away from the classic federal law arguments, the article then advocates for an evolution in state water law regimes to provide yet unrecognized protections for tribal sacred waters. Because international law plays an increasing role in this issue, the article also explores case studies from Ireland ...


Pueblo Indian Water Rights: Charting The Unknown, Richard W. Hughes 2017 University of New Mexico

Pueblo Indian Water Rights: Charting The Unknown, Richard W. Hughes

Natural Resources Journal

This article examines the so-far-unsuccessful efforts to judicially define and quantify the water rights appurtenant to the core land holdings of the 19 New Mexico Pueblos, many of whose lands straddle the Rio Grande. It explains that the Tenth Circuit Court of Appeals has squarely held that Pueblo water rights are governed by federal, not state law, and are prior to those of any non-Indian appropriator, but also that the Tenth Circuit acknowledged that it could not say how those rights should be characterized. Part I of the article examines the course of the cases that have sought to achieve ...


Legacy In Paradise: Analyzing The Obama Administration’S Efforts Of Reconciliation With Native Hawaiians, Troy J.H. Andrade 2017 William S. Richardson School of Law, University of Hawai’i at Mānoa

Legacy In Paradise: Analyzing The Obama Administration’S Efforts Of Reconciliation With Native Hawaiians, Troy J.H. Andrade

Michigan Journal of Race and Law

This Article analyzes President Barack Obama’s legacy for an indigenous people—nearly 125 years in the making—and how that legacy is now in considerable jeopardy with the election of Donald J. Trump. This Article is the first to specifically critique the hallmark of Obama’s reconciliatory legacy for Native Hawaiians: an administrative rule that establishes a process in which the United States would reestablish a government-to-government relationship with Native Hawaiians, the only indigenous people in America without a path toward federal recognition. In the Article, Obama’s rule—an attempt to provide Native Hawaiians with recognition and greater ...


“Why Should I Go Vote Without Understanding What I Am Going To Vote For?” The Impact Of First Generation Voting Barriers On Alaska Natives, James Thomas Tucker, Natalie A. Landreth, Erin Dougherty Lynch 2017 Wilson Elser LLP

“Why Should I Go Vote Without Understanding What I Am Going To Vote For?” The Impact Of First Generation Voting Barriers On Alaska Natives, James Thomas Tucker, Natalie A. Landreth, Erin Dougherty Lynch

Michigan Journal of Race and Law

This article explores the many forms of discrimination that have persisted in Alaska, the resulting first generation voting barriers faced by Alaska Native voters, and the two contested lawsuits it took to attain a measure of equality for those voters in four regions of Alaska: Nick v. Bethel and Toyukak v. Treadwell. In the end, the court’s decision in Toyukak came down to a comparison of just two pieces of evidence: (1) the Official Election Pamphlet that English-speaking voters received that was often more than 100 pages long; and (2) the single sheet of paper that Alaska Native language ...


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 ...


Money Is For Nothing: The Inherent Want Of Consideration Found In Substantial Exclusivity Terms Within Tribal-State Compacts, Paul C. Alexander II 2017 University of Idaho College of Law

Money Is For Nothing: The Inherent Want Of Consideration Found In Substantial Exclusivity Terms Within Tribal-State Compacts, Paul C. Alexander Ii

American Indian Law Journal

No abstract provided.


A Silent Epidemic: Revisiting The 2013 Reauthorization Of The Violence Against Women Act To Better Protect American Indian Native Women, Rory Flay 2017 Lewis and Clark Law School

A Silent Epidemic: Revisiting The 2013 Reauthorization Of The Violence Against Women Act To Better Protect American Indian Native Women, Rory Flay

American Indian Law Journal

No abstract provided.


Assessing Political Economy In Native American Nations, W. Gregory Guedel Ph.D, JD 2017 Hobbs Strauss Dean & Walker, LLP

Assessing Political Economy In Native American Nations, W. Gregory Guedel Ph.D, Jd

American Indian Law Journal

No abstract provided.


A Legal Practitioner's Guide To Indian And Tribal Law Research, Kelly Kunsch 2017 Seattle University School of Law

A Legal Practitioner's Guide To Indian And Tribal Law Research, Kelly Kunsch

American Indian Law Journal

No abstract provided.


Why The Religious Freedom Restoration Act Cannot Protect Sacred Sites, Timothy A. Wiseman 2017 PMSA Group

Why The Religious Freedom Restoration Act Cannot Protect Sacred Sites, Timothy A. Wiseman

American Indian Law Journal

No abstract provided.


Complex Adaptive Peacemaking: How Systems Theory Reveals Advantages Of Traditional Tribal Dispute Resolution, Juliana E. Okulski 2017 University of Denver Sturm College of Law

Complex Adaptive Peacemaking: How Systems Theory Reveals Advantages Of Traditional Tribal Dispute Resolution, Juliana E. Okulski

American Indian Law Journal

No abstract provided.


Digital Commons powered by bepress