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Operationalizing Free, Prior, And Informed Consent, Carla F. Fredericks 2017 University of Colorado Law School

Operationalizing Free, Prior, And Informed Consent, Carla F. Fredericks

Articles

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) has acknowledged varying ways in which international actors can protect, respect and remedy the rights of indigenous peoples. One of these methods is the concept of free, prior and informed consent (FPIC) as described in Articles 10, 19, 28 and 29. There has been much debate in the international community over the legal status of the UNDRIP, and member states have done little to implement it. In applied contexts, many entities like extractive industries and conservation groups are aware of risks inherent in not soliciting FPIC and have endeavored to ...


They Were Here First: American Indian Tribes, Race, And The Constitutional Minimum, Sarah Krakoff 2017 University of Colorado Law School

They Were Here First: American Indian Tribes, Race, And The Constitutional Minimum, Sarah Krakoff

Articles

In American law, Native nations (denominated in the Constitution and elsewhere as “tribes”) are sovereigns with a direct relationship with the federal government. Tribes’ governmental status situates them differently from other minority groups for many legal purposes, including equal protection analysis. Under current equal protection doctrine, classifications that further the federal government’s unique relationship with tribes and their members are subject to rationality review. Yet this deferential approach has recently been subject to criticism and is currently being challenged in the courts. Swept up in the larger drift toward colorblind or race-neutral understandings of the Constitution, advocates and commentators ...


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 ...


Métis Action, Canadian Law And Historical Research: Preliminary Thoughts About Strategies For Current Efforts, Signa A. Daum Shanks 2017 Osgoode Hall Law School of York University

Métis Action, Canadian Law And Historical Research: Preliminary Thoughts About Strategies For Current Efforts, Signa A. Daum Shanks

Articles & Book Chapters

Given the chatter and more substantive concern about Indigenous peoples as of late, many different people and institutions are both recalling what they have done (or have not done) in the past and what they will do next. While they do so, and evident in comments from everyone from the Prime Minister (Trudeau 2015) to a rally protester, the subject of how to move forward is also of issue. Within these conversations, non-Indigenous places and peoples have contributed much to the knowledge used to make more informed decisions (Eberts 2014; Slattery 2007). At the same time, Indigenous researchers and activists ...


Indigenous Legal Orders In Canada - A Literature Review, Michael Coyle 2017 UWO Law

Indigenous Legal Orders In Canada - A Literature Review, Michael Coyle

Law Publications

This is a literature review of publications concerning Indigenous legal orders in Canada. Funded by a SSHRC knowledge synthesis grant (2016), it follows the required format for Knowledge Synthesis Reports.

The suppression of Indigenous legal orders was an integral part of the colonial project to assimilate Indigenous peoples, a project exemplified by Canada’s now notorious experiment with Indian Residential Schools. Long marginalized by the Canadian state, the importance of Aboriginal peoples’ own legal systems has recently been recognized by the Supreme Court of Canada, by academics (including prominent Indigenous scholars) and the Truth and Reconciliation Commission, who all have ...


Property And Sovereignty: An Indian Reserve And A Canadian City, Douglas C. Harris 2017 Allard School of Law at the University of British Columbia

Property And Sovereignty: An Indian Reserve And A Canadian City, Douglas C. Harris

Faculty Publications

Property rights, wrote Morris Cohen in 1927, are delegations of sovereign power. They are created by the state and operate to establish limits on its power. As such, the allocation of property rights is an exercise of sovereignty and a limited delegation of it. Sixty years later, Joseph Singer used Cohen’s conceptual framing in a critical review of developments in American Indian law. Where the US Supreme Court had the opportunity to label an American Indian interest as either a sovereign interest or a property interest, he argued, it invariably chose to the disadvantage of the Indians. Within Canada ...


The Global Protection Of Traditional Knowledge: Searching For The Minimum Consensus, 17 J. Marshall Rev. Intell. Prop. L. 42 (2017), Aman Gebru 2017 John Marshall Law School

The Global Protection Of Traditional Knowledge: Searching For The Minimum Consensus, 17 J. Marshall Rev. Intell. Prop. L. 42 (2017), Aman Gebru

The John Marshall Review of Intellectual Property Law

The protection of traditional knowledge (TK) – the know-how, skills, innovations and practices of indigenous peoples and local communities has been a subject of heated debate in many international forums. TK has proved to be useful as an input in modern industries. For instance, pharmaceutical companies have used medicinal TK to develop drugs more quickly. Despite its value, TK faces an alarming rate of loss and there are many initiatives that attempt to preserve it for posterity. However, almost every major issue on TK protection is contentious, including whether international TK protection is necessary or if domestic legislation alone would suffice ...


Yellowbear V. Lampert— Putting Teeth Into The Religious Land Use And Institutionalized Person Act Of 2000, Nathan Lobaugh 2017 University of Oklahoma College of Law

Yellowbear V. Lampert— Putting Teeth Into The Religious Land Use And Institutionalized Person Act Of 2000, Nathan Lobaugh

American Indian Law Review

No abstract provided.


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 ...


Blackfeet Water Rights Settlement Act Of 2016, United States 114th Congress 2016 University of New Mexico

Blackfeet Water Rights Settlement Act Of 2016, United States 114th Congress

Native American Water Rights Settlement Project

Federal Legislation: Blackfeet Water Rights Settlement Act of 2016, in Water Infrastructure Improvements for the Nation Act, Title III, Subtitle G. PL 114-322, ** Stat. *** (Dec. 16, 2016). This Act authorizes, ratifies, and confirms the water rights compact between the Blackfeet Nation and Montana dated April 15, 2009, as modified to be consistent with this subtitle. The Act relates to the Blackfeet Nation’s water rights in the Milk River, Milk River Project, St. Mary River, instream flow rights, and rights in Lake Elwell and any water rights arising out of MT state law. The legislation authorized $422 million in funding ...


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. 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 ...


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. 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 ...


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 ...


Choctaw Nation Of Oklahoma And The Chickasaw Nation Water Settlement, United States 114th Congress 2016 University of New Mexico

Choctaw Nation Of Oklahoma And The Chickasaw Nation Water Settlement, United States 114th Congress

Native American Water Rights Settlement Project

Federal Legislation; Parties: Choctaw Nation of Oklahoma, Chickasaw Nation, City of Oklahoma City, Oklahoma, United States. Purposes, pp 169-170; Definitions, pp. 170-2; Approval of Settlement Agreement, pp. 172-3; Approval of Amended Storage Contract & 1974 Storage Contract, pp.173-5; Settlement Area Waters, pp. 175-7; City Permit for Appropriation of Surface Water from the Kiamichi River, p. 177; Settlement Commission, pp. 177-8; Waivers and Releases of Claims, pp. 178-183; Enforceability Date, pp. 183-5; Jurisdiction, Waivers of Immunity for Interpretation and Enforcement, pp. 185-6; Disclaimers, pp. 186-7. [Source: Government Printing Office http://www.gpo.gov]


'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.


Commentary On The Ongoing Indigenous Political Enterprise: What's Law Got To Do With It?, Monica Hakimi 2016 University of Michigan Law School

Commentary On The Ongoing Indigenous Political Enterprise: What's Law Got To Do With It?, Monica Hakimi

Other Publications

Professor Hakimi reviews Dalee Sambo Dorough's article, The Ongoing Indigenous Political Enterprise: What's Law Got to Do with It?, highlighting three tensions she defines within the article and the strengths and weaknesses of Dorough's examination of these three tensions.


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