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Indian and Aboriginal Law Commons

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Worcester V. Georgia: A Breakdown In The Separation Of Powers, Matthew L. Sundquist 2010 University of Oklahoma College of Law

Worcester V. Georgia: A Breakdown In The Separation Of Powers, Matthew L. Sundquist

American Indian Law Review

No abstract provided.


Defining Indian Status For The Purpose Of Federal Criminal Jurisdiction, Katharine C. Oakley 2010 University of Oklahoma College of Law

Defining Indian Status For The Purpose Of Federal Criminal Jurisdiction, Katharine C. Oakley

American Indian Law Review

No abstract provided.


The Conflict Between State Tests Of Tribal Entity Immunity And The Congressional Policy Of Indian Self-Determination, Aaron F.W. Meek 2010 University of Oklahoma College of Law

The Conflict Between State Tests Of Tribal Entity Immunity And The Congressional Policy Of Indian Self-Determination, Aaron F.W. Meek

American Indian Law Review

No abstract provided.


The Last Indian Raid In Kansas: Context, Colonialism, And Philip P. Frickey's Contributions To American Indian Law, Sarah Krakoff 2010 University of Colorado Law School

The Last Indian Raid In Kansas: Context, Colonialism, And Philip P. Frickey's Contributions To American Indian Law, Sarah Krakoff

Articles

To many, American Indian law is a remote and anomalous area of the law. To others, including Professor Phil Frickey, themes in American Indian law are central to our identity as a nation, and lessons from the field inform broader understandings of the competencies and limitations of the federal judiciary. One of Professor Frickey’s recurring scholarly arguments is that the federal courts are most within their areas of institutional competence when they approach contemporary Indian law questions as structural disputes between sovereigns, rather than as individual conflicts amenable to the application of mainstream public law values. An event described ...


Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide For Judges, Sarah Krakoff 2010 University of Colorado Law School

Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide For Judges, Sarah Krakoff

Articles

This Article provides a summary of the law of tribal civil jurisdiction over persons who are not members of the governing tribe ("nonmembers'), followed by an analysis of trends in the lower courts. It was written to respond to a consensus view at the University of Colorado Law Review Symposium: "The Next Great Generation of American Indian Law Judges," in January 2010, that a concise, practical, yet in-depth treatment of this subject would be useful to the judiciary as well as practitioners. The Article traces the development of the Supreme Court's common law of tribal civil judicial jurisdiction from ...


An Analysis Of Article 28 Of The United Nations Declaration On The Rights Of Indigenous Peoples, And Proposals For Reform, David Fautsch 2010 University of Michigan Law School

An Analysis Of Article 28 Of The United Nations Declaration On The Rights Of Indigenous Peoples, And Proposals For Reform, David Fautsch

Michigan Journal of International Law

The purpose of this Note is two-fold: first, to demonstrate why the standards set out in Article 28 require further clarification, and second, to propose reforms (both inside and outside of the United Nations framework) that might benefit indigenous peoples claiming land rights.


The Duty To Consult And Accommodate: Procedural Justice As Aboriginal Rights, Lorne Sossin 2010 Osgoode Hall Law School of York University

The Duty To Consult And Accommodate: Procedural Justice As Aboriginal Rights, Lorne Sossin

Articles & Book Chapters

This article explores the development and application of the “duty to consult and accommodate” from an administrative law perspective and more broadly con- siders the promise and limitations of procedural justice through the context of ab- original rights. The question addressed in this article is the relationship between procedural justice and substantive outcomes in the context of aboriginal rights in Canada. More specifically, by developing a “duty to consult and accommodate” on the part of the Crown with aboriginal communities who have asserted but not yet proven land claims, has the Court advanced the potential for reconciliation, or provided a ...


Where Cultures And Sovereigns Collide: Balancing Federalism, Tribal Self-Determination, And Individual Rights In The Adoption Of Indian Children By Gays And Lesbians, Steve Sanders 2010 Indiana University Maurer School of Law

Where Cultures And Sovereigns Collide: Balancing Federalism, Tribal Self-Determination, And Individual Rights In The Adoption Of Indian Children By Gays And Lesbians, Steve Sanders

Articles by Maurer Faculty

This article analyzes the complex interplay between adoption (traditionally a matter reserved to state family law) and the federal Indian Child Welfare Act in the context of adoptions by gays and lesbians.

As a federal statute that partially preempts state law for the benefit of Native Americans, ICWA implicates three sovereigns: the United States, the state where the adoption petition is brought, and the tribe whose child is the focus of the proceeding. This interplay of sovereigns in itself makes Indian child welfare law complicated and interesting. Beyond these sovereign interests, also to be considered are the interests and rights ...


Crow Dog Vs. Spotted Tail: Case Closed, Vivek Sankaran, Timothy Connors 2010 University of Michigan Law School

Crow Dog Vs. Spotted Tail: Case Closed, Vivek Sankaran, Timothy Connors

Articles

In 1868, Chief Spotted Tail signed a United States government treaty with an X. Spotted Tail was a member of the Brule Sioux Tribe, related by marriage to Crazy Horse. The government treaty recognized the Black Hills as part of the Great Sioux reservation. As such, exclusive use of the Black Hills by the Sioux people was guaranteed. Monroe, Michigan, native Gen. George Custer changed all that. In 1874, he led an expedition into that protected land, announced the discovery of gold, and the rush of prospectors followed. Within two years, Custer attacked at Little Big Horn and met his ...


Food Fish, Commercial Fish, And Fish To Support A Moderate Livelihood: Characterizing Aboriginal And Treaty Rights To Canadian Fisheries, Douglas C. Harris, Peter Millerd 2010 Allard School of Law at the University of British Columbia

Food Fish, Commercial Fish, And Fish To Support A Moderate Livelihood: Characterizing Aboriginal And Treaty Rights To Canadian Fisheries, Douglas C. Harris, Peter Millerd

Faculty Publications

The Aboriginal peoples of Canada stand in a different legal relationship to the fisheries than non-Aboriginal Canadians. They do so by virtue of a long history with the fisheries that precedes non-Aboriginal settlement in North America, and because of the constitutional entrenchment of Aboriginal and treaty rights in Canadian law. This article describes the characterizations of Aboriginal and treaty rights to fish in Canadian law and discusses what it means for rights characterized in terms of food fishing, commercial fishing, and fishing to support a moderate livelihood, to receive constitutional protection. The article then problematizes these characterizations and suggests that ...


Clean Water In Indian Country: The Risks (And Rewards) Of Being Treated In The Same Manner As A State, Marren Sanders 2009 Arizona Summit Law School

Clean Water In Indian Country: The Risks (And Rewards) Of Being Treated In The Same Manner As A State, Marren Sanders

Marren Sanders

No abstract provided.


A Crisis In Indian Country: An Analysis Of The Tribal Law And Order Act Of 2010, Gideon Hart 2009 Columbia University

A Crisis In Indian Country: An Analysis Of The Tribal Law And Order Act Of 2010, Gideon Hart

Gideon M. Hart

Crime and violence have long been a serious problem in Indian Country. In recent years, though, the extraordinary levels of gang activity and high rates of sexual violence against Native American women have received a large amount of media attention. Responding to this problem, Congress passed the Tribal Law and Order Act of 2010. Through this legislation, Congress seeks to lower the rates of crime in Indian Country, particularly with regard to crimes committed against Native American women; the Act significantly increases the resources and authority of federal prosecutors and agencies in Indian Country and increases the sentencing authority of ...


Mark The Plumber V. Tribal Empire Or Non-Indian Anxiety V. Tribal Sovereignty? The Story Of Oliphant V. Suquamish Indian Tribe, Sarah Krakoff 2009 University of Colorado at Boulder

Mark The Plumber V. Tribal Empire Or Non-Indian Anxiety V. Tribal Sovereignty? The Story Of Oliphant V. Suquamish Indian Tribe, Sarah Krakoff

Sarah Krakoff

In Oliphant v. Suquamish Indian Tribe, the Supreme Court held that American Indian tribes do not have criminal jurisdiction over non-Indians. The case is famous for this categorical rule, but it also marked the beginning of judicial tampering with tribal jurisdiction in civil matters. This in-depth history of the case reveals that fear about tribal economic and political power drove the outcome in Oliphant, and that Oliphant's long-term effects on tribal civil powers are therefore not surprising. Meanwhile, the almost unintended erosion of criminal authority in Indian country has had terribly negative impacts on tribes and their members.


Tribal Land Laws In Andhra Pradesh, Hari Priya 2009 NALSAR University of Law

Tribal Land Laws In Andhra Pradesh, Hari Priya

Hari Priya

No abstract provided.


Section 4 Of The Hindu Succession Act Of 1956, Hari Priya 2009 NALSAR University of Law

Section 4 Of The Hindu Succession Act Of 1956, Hari Priya

Hari Priya

A brief write up in the form of a comprehensive article aiming to critically evaluate the Section 4 of the Hindu Succession Act of 1956. The law, as it stands amended, has not only brought about changes in the succession laws of Hindus, but has also paved the way for some positive modifications in the law of partition, alienation of property, inheritance and adoption, and the paper is an effort to evaluate this provision of the law.


Ahistorical Indians And Reservation Resources, Ezra Rosser 2009 American University Washington College of Law

Ahistorical Indians And Reservation Resources, Ezra Rosser

Ezra Rosser

The article is an in-depth exploration of the impacts of an Indian tribe's decision to pursue an environmentally destructive form of economic development. The history of Navajo Nation's coal leasing provides the background for the tribe's recent proposal to build a coal-fired power plant and the controversies surrounding the proposal and the environmental review process.


Anticipating De Soto: Allotment Of Indian Reservations And The Dangers Of Land-Titling, Ezra Rosser 2009 American University Washington College of Law

Anticipating De Soto: Allotment Of Indian Reservations And The Dangers Of Land-Titling, Ezra Rosser

Ezra Rosser

This chapter uses the disastrous allotment experience of Indian tribes to question the transformative power of land-titling for the poor as advocated by Hernando de Soto. For Indians, allotment era land-titling resulted in loss of land and hardship, all reflective of non-Indian desires for the land and an unwillingness to acknowledge the rights of Indians to govern themselves. The chapter ends with a brief discussion of the champas of El Salvador and the potential loss in terms of housing for the poor if de Soto’s ideas are implemented without some protection against sales to the wealthy.


Legal Pluralism And The Rule Of Law: Can Indigenous Justice Survive?, David Pimentel 2009 University of Idaho

Legal Pluralism And The Rule Of Law: Can Indigenous Justice Survive?, David Pimentel

David Pimentel

The clash between modern statutory justice systems and the traditional systems of indigenous communities is not on a level playing field. Even where legal pluralism is formally recognized, the conflict threatens the continued relevance of customary law.  If these non-Western legal systems are to maintain their relevance and vitality, if they are even to have a place in the new global community, those agencies and individuals engaged in promoting the rule of law, economic development, or respect for human rights must resist the impulse to simply impose the Western laws and legal institutions.  Instead, reform-minded agencies and individuals should seek ...


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