Law Commons^™

The Role Of The State, Multinational Oil Companies, International Law & The International Community: Intersection Of Human Rights & Environmental Degradation Climate Change In The 21st Century Caused By Traditional Extractive Practices, The Amazon Rainforest, Indigenous People And Universal Jurisdiction To Resolve The Accountability Issue, Marcela Cabrera Luna

Master's Theses

Local, national and international conventions that protect indigenous sovereignty and their territories, where many of the resources are extracted from by multinational corporations (MNCs) particularly oil, the number one commodity of the world and cause of climate change, continue to be jeopardized because of the lack of a clear international legal framework that can protect them and potentially hold multinationals accountable for their actions. These practices are causing not only environmental issues to the indigenous and surrounding communities, but climate change is in fact, the real human rights issue of the 21^st century and it affects everyone. By using …

The Binding Guidance Principle: Using The Indian Trust Doctrine To Trump The Apa, John Robinson Jr., J.D.

American Indian Law Journal

No abstract provided.

The Tohono O'Odham Nation And The United States-Mexico Border, Peter Heidepriem

American Indian Law Journal

No abstract provided.

Endangered Species, Endangered Treaties: Protecting Treaty Rights, Economic Development, And Tribal Consultation Under Secretarial Order 3206, Jeremy Wood

American Indian Law Journal

No abstract provided.

Protecting Victims Of Domestic Assault: Upholding The Use Of Uncounseled Tribal Court Domestic Assault Convictions To Establish Federal Habitual Domestic Assault Charges, Joanna Adu

American Indian Law Journal

No abstract provided.

Defining The Indian Civil Rights Act's "Sufficiently Trained" Tribal Court Judge, Jill Elizabeth Tompkins

American Indian Law Journal

No abstract provided.

A Streamlined Model Of Tribal Appellate Court Rules For Lay Advocates And Pro Se Litigants, Gregory D. Smith J.D.

American Indian Law Journal

No abstract provided.

Indigenous Women, Water Justice And Zaagidowin (Love), Deborah Mcgregor

Articles & Book Chapters

I would like to open by saying Chi-miigwech (a big thank-you) to those Elders/Grandmothers who have shared their stories and teachings with me over the years. Some have since passed on and I hope that through my words, their love and generosity will continue the process of healing the people and waters upon which they so integrally depend.

The paper which follows contains many references to notions of love, mutual respect, and responsibility towards the natural world, and water in particular. These ideas may seem a little tenuous for a serious paper on a critical environmental justice issue, but concepts …

The Failure Of The Canadian Human Rights Regime To Provide Remedies For Indigenous Peoples: Enough Time Has Passed, Jeffery Gordon Hewitt

LLM Theses

In 2008, Canada amended the Canadian Human Rights Act to remove s.67, which in essence precluded Indigenous Peoples from bringing complaints as against Canada and Band governments. Since the amendment took effect in 2010, a multi-fold increase has occurred in the number of complaints filed with the Human Rights Commission of Canada from dozens to hundreds. The first such significant complaint to be heard by the Canadian Human Rights Tribunal was filed by the First Nation Child and Family Caring Society along with the Assembly of First Nations (the Complaint). The Complaint alleges Canada's funding with respect to First Nation …

Agdaagux Tribe Of King Cove V. Jewell, Taylor R. Thompson

Public Land & Resources Law Review

In a lengthy opinion by the Alaska District Court, the battle for a proposed medical emergency road through the Izembek National Refuge stalled. The court held that the Department of the Interior’s No Action Alternative blocked the construction of the road was decided in accordance within the Department’s authority. It is not the end of the battle over the road, as the court alluded that Congress may be able to change this decision.

Penary Energy, Carla F. Fredericks

West Virginia Law Review

No abstract provided.

Pit River Tribe V. Bureau Of Land Management, 793 F.3d 1147 (9th Cir. 2015), Kathryn S. Ore

Public Land & Resources Law Review

In Pit River Tribe v. Bureau of Land Management, the United States Court of Appeals for the Ninth Circuit explained the correct application of the zone of interests test and further solidified the importance of proper NEPA and NHPA analysis in geothermal leasing. The court reaffirmed that the BLM and the Forest Service must conduct additional cultural and environmental analysis when granting lease extensions under the Geothermal Steam Act. Furthermore, it rejected the BLM’s decision to grant forty-year lease continuations to unproven geothermal leases by treating them as a unit rather than individually.

Gas, Roads, And Glory: North Dakota And Mha Nation's Struggle Over Flaring Regulation, Erica Beacom

William & Mary Environmental Law and Policy Review

No abstract provided.

Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit, Jensen V. Exc, Inc., John P. Lavelle, Geoffrey R. Romero, Michael J. Barthelemy

Faculty Scholarship

The petitioners argue:

1) Supervisory Review is Needed Because the District Court and the Ninth Circuit Automatically Aligned U.S. Highway 160 with Alienated, Non-Indian Fee Land, Ignoring this Court’s Context-Specific, Multifactor Methodology for Determining the Status of Reservation Roadways for Tribal Jurisdictional Purposes.

2) Supervisory Review is Also Necessary Because Both Lower Courts Refused to Apply Supreme Court Precedents Governing Whether an Indian Tribe Retains Treaty-Based Authority over the Conduct of Nonmembers on a Tribe’s Reservation, Effecting an Impermissible Judicial Abrogation of the Navajo Nation’s Congressionally Confirmed, Treaty-Based Jurisdiction in This Case.

3) Supervisory Review is Further Needed Because Both …

They Promised To Leave Us Some Of Our Land: Aboriginal Title In Canada's Maritime Provinces, Robert Colin Hamilton

LLM Theses

This thesis analyzes the status of Aboriginal title in Canada's Maritime Provinces in light of the Supreme Court of Canada's historic declaration of Aboriginal title in the 2014 decision of Tsilhqot'in Nation v. British Columbia. This thesis argues that, in light of the clarified legal principles articulated by the Court, it is very likely that Aboriginal title can be proven to have existed in the Maritime Provinces. In light of this conclusion, the inquiry then shift to whether that title was legally extinguished. The legal parameters of the extinguishment question are surveyed in considerable detail and it is concluded that …

Habeas Corpus Petitions In Federal And Tribal Courts: A Search For Individualized Justice, Carrie E. Garrow

William & Mary Bill of Rights Journal

No abstract provided.

You Gotta Fight For The Right To Vote: Enfranchising Native American Voters, Jeanette Wolfley

Faculty Scholarship

Five decades ago, the Congress passed the Voting Rights Act of 1965. Since its passage, the Voting Right Act has created the opportunity to vote for many racial and language minorities across the country, and has survived many challenges until 2013. The U.S. Supreme Court issued two decisions involving voting rights in its 2012-2013 term. On June 25, 2013, in Shelby County v. Holder, a divided Supreme Court struck down Section 4 - a key provision of the 1965 Voting Right Act (VRA) - as unconstitutional. On June 17, 2013, one week before the Shelby County decision, the Court decided …

Getches-Wilkinson Center Newsletter, Fall 2015, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Getches-Wilkinson Center for Natural Resources, Energy, and the Environment Newsletter (2013-)

No abstract provided.

Indigenous Lawyers In Canada: Identity, Professionalization, Law, Sonia Lawrence, Signa A. Daum Shanks

Articles & Book Chapters

For Indigenous communities and individuals in Canada, "Canadian" law has been a mechanism of assimilation, colonial governance and dispossession, a basis for the assertion of rights, and a method of resistance. How do Indigenous lawyers in Canada make sense of these contradictory threads and their roles and responsibilities? This paper urges attention to the lives and experiences of Indigenous lawyers, noting that the number of self-identified Indigenous lawyers has been rapidly growing since the 1990s. At the same time, Indigenous scholars are focusing on the work of revitalizing Indigenous law and legal orders. Under these conditions, Indigenous lawyers occupy a …

Defining Metis People As A People: Moving Beyond The Indian/Metis Dichotomy, Brenda L. Gunn

Dalhousie Law Journal

This article argues that the legal definition that defines Metis people in opposition to Indian detracts from the goal of recognizing the Metis as a distinct people. The article argues that we ought to de-couple the definitions of Metis and Indian to more strongly recognize Metis as a distinct people. This article considers three intertwined concerns that arise from this dichotomous approach to Metis identity The first concern is about the "hard line" created in the definition between Indian and Metis, forcing one to be either Indian or Metis. The second concern is that changes to the definition of Indian …

Indigenous Lawyers In Canada: Identity, Professionalization, Law, Sonia Lawrence, Signa Daum Shanks

Dalhousie Law Journal

For Indigenous communities and individuals in Canada, "Canadian" law has been a mechanism of assimilation, colonial governance and dispossession, a basis for the assertion of rights, and a method of resistance. How do Indigenous lawyers in Canada make sense of these contradictory threads and their roles and responsibilities? This paper urges attention to the lives and experiences of Indigenous lawyers, noting that the number of self-identified Indigenous lawyers has been rapidly growing since the 1990s. At the same time, Indigenous scholars are focusing on the work of revitalizing Indigenous law and legal orders. Under these conditions, Indigenous lawyers occupy a …

Queering Indigenous Legal Studies, Emily Snyder

Dalhousie Law Journal

A handful of scholars have examined sex, gender, and sexuality in relation to Indigenous laws; yet their work is infrequently taken up in the field, and there is a broader need for conversations about what it means to "queer" Indigenous legal studies. In this paper, I centre and examine work that contributes to this queering so as to promote inclusive critical legal education and engagement. I also discuss the implications of not attending to sexuality and develop preliminary propositions for queering Indigenous legal studies.

Indian Country Today Interviews Kevin Washburn About Federal Recognition Rules And Protecting Sacred Sites, Kevin Washburn

Faculty Scholarship

Indian Country Today Media Network caught up with Kevin K. Washburn to discuss his legacy as ASIA, among other hot topics in Indian country like: reformed federal recognition rules, Cobell, Oak Flat, Land in Trust and more.

Disparaging Trademarks: Who Matters, Jasmine Abdel-Khalik

Michigan Journal of Race and Law

For more than a century, non-majority groups have protested the use of trademarks comprised of or containing terms referencing the group—albeit for various reasons. Under the 1946 Lanham Act, Congress added a prohibition against registering disparaging trademarks, which could offer protection to non-majority groups targeted by the use of trademarks offensive to members of the group. The prohibition remained relatively unclear, however, and rarely applied in that context until a group of Native Americans petitioned to cancel the Washington NFL team’s trademarks as either scandalous, offensive to the general population, or disparaging, offensive to the referenced group. In clarifying the …

Section 5: Race, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Traditional Knowledge Rights And Wrongs, Sean Pager

Sean Pager

SourceURL:file://localhost/Users/sean/Documents/Folklore%20TK/Unpacking%20ABSTRACT.doc

Traditional Knowledge Rights and Wrongs

Sean A. Pager, Michigan State University

ABSTRACT

Should the intangible heritage of indigenous people be subject to intellectual property rights? After years of effort, international delegates are poised to complete a pair of ambitious treaties that would accomplish this goal. This Article provides the first detailed analysis and critique of the draft treaties, which provide for exclusive rights in traditional knowledge and cultural expression, respectively. Proponents of such protection often invoke both cultural integrity and economic justice rationales. Yet, these rationales dictate conflicting imperatives. To resolve these conflicts, the Article argues for greater differentiation …

Protecting Ecosystems, Culture, And Human Rights In Chile Through Indigenous And Community-Conserved Territories And Areas, William G. Crowley

Capstone Collection

In environmental conservation circles around the world, the contributions of indigenous peoples and local communities to the sustainable maintenance of ecosystems and natural resources are being given increased attention. Whether for cultural, spiritual, economic, or other purposes, the use of traditional and local knowledge of habitat and resource management is slowly making its way into the modern environmental movement, and is being incorporated into the dominant conservation paradigms. These managed areas, known as Indigenous and Community-Conserved Territories and Areas, or ICCAs, are defined by the International Union for Conservation of Nature as “natural and/or modified ecosystems containing significant biodiversity …

Belcourt Public School District V. Davis, Hallie Bishop

Public Land & Resources Law Review

No abstract provided.

Crow Tribe Of Indians – Montana Compact, Ariel E. Overstreet-Adkins

Public Land & Resources Law Review

This order from the Montana Water Court approved the Crow Water Compact over objections by non-tribal water users in Montana. Although the Objectors have appealed the decision to the Montana Supreme Court, this order represents the next-to-last step in a process, started in 1979, to define and quantify the reserved water rights for current and future uses of the Crow Nation in Montana. The order provides a clear roadmap for other Montana tribes still seeking to achieve approval of a water compact by the Montana Water Court, and for objectors who would attempt to invalidate a compact in future proceedings.

The Constitutional Dimensions Of Aboriginal Title, Brian Slattery

Brian Slattery

As the Supreme Court reaffirms in Tsilhqot’in Nation v. British Columbia (2014), Aboriginal title is a sui generis right which cannot be described in traditional property terms. This paper argues that the explanation for this fact is that Aboriginal title is not a concept of private law. It is a concept of public law. It does not deal with the rights of private entities but with the rights and powers of constitutional entities that form part of the Canadian federation. If we look for analogies to Aboriginal title, we find a close parallel in Provincial title – the rights held …