The Right To Counsel For Indians Accused Of Crime: A Tribal And Congressional Imperative, 2013 University of New Mexico - School of Law
The Right To Counsel For Indians Accused Of Crime: A Tribal And Congressional Imperative, Barbara L. Creel
Faculty Scholarship
Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it …
Ownership Is Nine-Tenths Of Possession: How Disparate Conceptions Of Ownership Influence Possession Doctrines, 2013 University of Pennsylvania Law School
Ownership Is Nine-Tenths Of Possession: How Disparate Conceptions Of Ownership Influence Possession Doctrines, Martin Hirschprung
martin hirschprung
Possession is nine-tenths of ownership. And yet, the concept of possession remains woefully unclear in the law, thereby rendering the very idea of ownership too somewhat murky. This Article argues that there exists a reflexive relationship between possession and ownership, and that one’s understanding of ownership and its incidents influence the very concept of possession, rather than vice-versa. The Article further argues that given this reality, the application of the concept of stewardship to question of possession can aid significantly in resolving some of the most important contemporary disputes regarding possession and ownership in society, such as disputes between museums …
Beyond Uniqueness: Reimagining Tribal Courts' Jurisdiction, 2013 University of California, Davis
Beyond Uniqueness: Reimagining Tribal Courts' Jurisdiction, Katherine J. Florey
Katherine J. Florey
If there is one point about tribal status that the Supreme Court has stressed for decades if not centuries, it is the notion that tribes as political entities are utterly one of a kind. This is to some extent reasonable; tribes, unlike other governments, have suffered the painful history of colonial conquest, making some distinctive treatment eminently justifiable. But recent developments have demonstrated to many tribes that uniqueness has its disadvantages. In the past few decades, the Supreme Court has undertaken a near-complete dismantling of tribal civil jurisdiction over nonmembers. Under current law, tribes have virtually no authority to permit …
Uncounseled Tribal Court Guilty Pleas In State And Federal Courts: Individual Rights Versus Tribal Self-Governance, 2013 University of Michigan Law School
Uncounseled Tribal Court Guilty Pleas In State And Federal Courts: Individual Rights Versus Tribal Self-Governance, Christiana M. Martenson
Michigan Law Review
Indian tribes in the United States are separate sovereigns with inherent self-governing authority. As a result, the Bill of Rights does not directly bind the tribes, and criminal defendants in tribal courts do not enjoy the protection of the Sixth Amendment right to counsel. In United States v. Ant, a defendant - without the legal assistance that a state or federal court would have provided - pled guilty to criminal charges in tribal court. Subsequently, the defendant faced federal charges arising out of the same events that led to the tribal prosecution. The Ninth Circuit in Ant barred the federal …
What Place Does The Treaty Have In New Zealand's Constitutional Arrangements?, 2013 High Court of New Zealand, Auckland
What Place Does The Treaty Have In New Zealand's Constitutional Arrangements?, Matthew S.R. Palmer
The Hon Justice Matthew Palmer
In this address Matthew Palmer makes suggestions about how the Treaty of Waitangi should be reflected in New Zealand's constitutional arrangements.
Extreme Rubber-Stamping: The Fee-To-Trust Process Of The Indian Reorganization Act Of 1934, 2013 Pepperdine University
Extreme Rubber-Stamping: The Fee-To-Trust Process Of The Indian Reorganization Act Of 1934, Kelsey J. Waples
Pepperdine Law Review
In recognition of the massive loss of Indian territory since the European “discovery” of America, the Indian Reorganization Act of 1934 provides a process whereby Indian tribes can expand their reservations by applying to have additional land placed into trust for their benefit. This process, known as the fee-to-trust process, is the subject of fervent opposition by many affected communities because once taken into trust for a tribe, such land is no longer subject to state and local taxation or zoning, planning, and other regulatory controls. Accordingly, this Comment explores the efficacy of the fee-to-trust process by analyzing the Pacific …
A Testament To Power: Mary Woolsey And Dolores Rodriguez As Trial Witnesses In Arizona's Early Statehood, 2013 University of Nebraska-Lincoln
A Testament To Power: Mary Woolsey And Dolores Rodriguez As Trial Witnesses In Arizona's Early Statehood, Katrina Jagodinsky
Department of History: Faculty Publications
In 1913, two women made history when they testified before the all-white, all-male jury of the Superior Court of Yavapai County in the State of Arizona v. Juan Fernandez murder trial. Mary Woolsey, an elderly Yavapai widow, and Dolores Rodriguez, a Mexican single mother of three, established the legal precedent for allowing non-English-speaking, non-citizen women to testify in state courts in Arizona when many other western states still did not grant such privileges to indigenous residents. Woolsey and Rodriguez showed that Arizona's indigenous population were competent, if somewhat problematic, members of Arizona's body politic, and their historic involvement in the …
The Promise And Perils Of Renewable Energy On Tribal Lands, 2013 University of Connecticut School of Law
The Promise And Perils Of Renewable Energy On Tribal Lands, Sara Bronin
Faculty Articles and Papers
No abstract provided.
Toward Genuine Tribal Consultation In The 21st Century, 2013 Mitchell Hamline School of Law
Toward Genuine Tribal Consultation In The 21st Century, Colette Routel, Jeffrey K. Holth
Faculty Scholarship
The tribal right to consultation requires the federal government to consult with Indian tribes prior to the approval of any federal project, regulation, or agency policy. This article, which provides the first comprehensive analysis of this right, highlights the current inconsistencies in interpretation and application of the consultation duty. It then attempts to provide suggestions for changes that can be implemented by the legislative, executive or judicial branches.
In Part I, we provide a brief overview of the development of the trust responsibility and explain how it came to include three substantive duties: to provide services to tribal members, to …
Winter 2013 Utton Center Newsletter, 2013 University of New Mexico
Winter 2013 Utton Center Newsletter, Utton Center, University Of New Mexico - School Of Law
Publications
No abstract provided.
Frameworks For Amending Reservoir Water Management, 2013 University of New Mexico
Frameworks For Amending Reservoir Water Management, Ethan Mower, Leandro E. Miranda
Publications
Managing water storage and withdrawals in many reservoirs requires establishing seasonal targets for water levels (i.e., rule curves) that are influenced by regional precipitation and diverse water demands. Rule curves are established as an attempt to balance various water needs such as flood control, irrigation, and environmental benefits such as fish and wildlife management. The processes and challenges associated with amending rule curves to balance multiuse needs are complicated and mostly unfamiliar to non-US Army Corps of Engineers (USACE) natural resource managers and to the public. To inform natural resource managers and the public we describe the policies and process …
A Water Rights Manual For Mutual Domestic Water Consumers Associations, 2013 University of New Mexico - School of Law
A Water Rights Manual For Mutual Domestic Water Consumers Associations, Utton Center, University Of New Mexico - School Of Law, Zachary Carpenter, Gregory Chakalian, Darcy S. Bushnell
Publications
The Utton Center prepared this Water Rights Manual to assist Mutual Domestic Water Consumers Associations (MDWCAs) with the development, protection and management of their water rights.
This manual provides an introduction to and defines Water Rights in New Mexico, as well as to acquire and have recognized Water Rights. This document also covers water management and planning, and provides additional resources.
San Felipe Pueblo Tribal Court Handbook (2013), 2013 University of New Mexico
San Felipe Pueblo Tribal Court Handbook (2013), Tribal Law Journal Staff
Tribal Law Journal
This handbook helps take some of the mystery out of practicing in tribal courts. Without the necessary information to learn new rules and protocols many attorneys are understandably reluctant to practice in a new jurisdiction. As a result, tribal courts are underused or misused. This handbook is intended to help attorneys and advocates become more aware of the various individual tribal court systems and to learn their rules and protocol.
San Ildefonso Pueblo Tribal Court Handbook (2013), 2013 University of New Mexico
San Ildefonso Pueblo Tribal Court Handbook (2013), Tribal Law Journal Staff
Tribal Law Journal
This handbook helps take some of the mystery out of practicing in tribal courts. Without the necessary information to learn new rules and protocols many attorneys are understandably reluctant to practice in a new jurisdiction. As a result, tribal courts are underused or misused. This handbook is intended to help attorneys and advocates become more aware of the various individual tribal court systems and to learn their rules and protocol.
American Indian Water Rights, 2013 University of New Mexico
American Indian Water Rights, Michael Osborn, Darcy S. Bushnell
Water Matters!
Pueblos and tribal reservations are located within most of the larger stream systems in New Mexico. Each has claims to rights to use the water in its stream. In New Mexico, Indian rights are significant because of their early priority dates, because of the large amounts of water rights claimed, or both. In some instances, such claims have the potential to displace a significant number of junior water rights.
Common law theories or doctrines pertaining to Indians continue to be judicially refined and to evolve so that discussing the nature and extent of “Indian water rights” is a complex topic.
State And Regional Water Planning, 2013 University of New Mexico - School of Law
State And Regional Water Planning, Brigette Buynak, Susan Kelly, Sarah Armstrong
Water Matters!
A statewide water planning effort was initiated by the New Mexico legislature in the 2003 session. The Interstate Stream Commission (ISC),in collaboration with the Office of the State Engineer (OSE) and the Water Trust Board, was tasked with preparing and implementing a comprehensive state water plan. Regional water planning had begun much earlier, prompted by a lawsuit that El Paso filed against New Mexico in 1983, El Paso v. Reynolds.
The State Water Plan Act of 2003 (Act) was intended to promote stewardship of the state’s water resources and to establish clear policies and strategies for management of the state’s …
Groundwater, 2013 University of New Mexico - School of Law
Groundwater, Darcy S. Bushnell, Diego Urbina
Water Matters!
Since the late nineteenth century, New Mexicans have been developing the state’s groundwater resources. From hand-dug wells to proposed wells that could penetrate to 12,000 feet, residents have sought sources to supplement and replace surface water. The state relies upon groundwater to supply almost 50 percent of its needs.
As the population grows and drought intensifies, groundwater sources are tapped with increasing urgency. Limited steps are being taken to preserve groundwater through conservation, groundwater recharge, and regulation.
Deep Water Regulation, 2013 University of New Mexico - School of Law
Deep Water Regulation, Paul Bossert, Kari Olson
Water Matters!
With most of the surface water in New Mexico fully appropriated and with groundwater sources being drawn down and becoming less reliable, the search for new sources of water is reaching further and further afield of traditional sources and methods. Water wells deeper than 2,000 feet have been rare due to the expense of deep drilling and the uncertainty of finding potable water. Yet the combined circumstances of advances in hydrology and the escalating demand for new water have driven the search for water deeper than was previously considered practical.
Community Water Systems, 2013 University of New Mexico - School of Law
Community Water Systems, Joanne Hilton, Susan Kelly, Sarah Armstrong
Water Matters!
Apart from the major cities along the Rio Grande corridor, much of New Mexico remains relatively rural. Recent studies estimate a 2013population of around 2,085,500 statewide. In the state fiscal year 2011,about 1,836,000 people, or 88 percent of New Mexico’s population obtain their water from community water systems. Approximately 284,000 people, or about14 percent of the population, receive their drinking water from community water systems serving fewer than 5,000 people. As of 2012, there are 1,148 public water systems that provide drinking water in New Mexico. Of these systems, 593are community water systems; of these, 546 serve fewer than 5,000 …
Water Marketing, 2013 University of New Mexico - School of Law
Water Marketing, Jeremy Oat, Laura Paskus
Water Matters!
Water doesn’t just flow around New Mexico in streams and rivers: it also moves around on paper. Since all of the state’s surface-water and most of its groundwater have already been allocated, the only way for cities, developers, or conservation organizations to find new water supplies is to buy and transfer water rights from old uses and places to new uses and places. The N.M. Office of the State Engineer (OSE) approves each of these transfers, most of which are relatively small, but the numbers can add up over time. Between 1982 and 2011, for instance, 21,000 acre-feet of Middle …