Law Commons^™

Indigenous Influence On The Rights Of Nature Movement, Vanessa Racehorse

Faculty Scholarship

The growing recognition of the rights of nature is a blend of both modern conservation efforts and principles reflected in traditional Indigenous stewardship that should be an essential component of the discourse around environmental justice. This article provides an overview of the laws that invoke the rights of nature that Indigenous perspectives and practices regarding environmental preservation have influenced. This discussion pays particular attention to the White Earth Band of Ojibwe's "Rights of Manoomin" law and Manoomin v. Minnesota Department of Natural Resources (White Earth Band of Ojibwe Tribal Ct. 2021), the first rights of nature case filed in a …

Surviving Castro-Huerta: The Historical Perseverance Of The Basic Policy Of Worcester V. Georgia Protecting Tribal Autonomy, Notwithstanding One Supreme Court Opinion's Errant Narrative To The Contrary, John P. Lavelle

Faculty Scholarship

Oklahoma v. Castro‑Huerta is an unprecedented attack on the autonomy of Native American nations in the United States. The Supreme Court held that Oklahoma had jurisdiction over a crime committed by a non‑Indian perpetrator against an Indian victim within the Cherokee Reservation’s boundaries. The decision posits that states presumptively have jurisdiction, concurrent with the federal government, over crimes by non‑Indians against Indians in Indian country. But this proposition is at war with a bedrock principle of Indian law, namely, that reservations are essentially “free from state jurisdiction and control,” a policy that “is deeply rooted in the Nation’s history.” That …

Brief Of Amici Curiae Law Professors & Indian Law Experts In Support Of Petition For A Writ Of Certiorari, Smith V. United States, Barbara L. Creel, Verónica Gonzales-Zamora, Marc-Tizoc Gonzaléz

Faculty Scholarship

The decision reached by the United States Court of Appeals for the Ninth Circuit, permitting the application of state criminal law to punish a tribal member whose alleged criminal conduct occurred on an Indian reservation and caused no harm to another person—solely based on the Assimilative Crimes Act (ACA), 18 U.S.C. § 13 is contrary to numerous treaties, acts of Congress, and foundational principles
of tribal sovereignty as construed and upheld by this Court’s federal Indian law jurisprudence. Allowing the Ninth Circuit decision to stand renders express
congressional authorizations and limitations on federal and state criminal jurisdiction over Indians in …

Hualapai Tribe Water Rights Settlement Act Of 2022, United States 117th Congress

Native American Water Rights Settlement Project

The purposes of this Act are—(1) to resolve, fully and finally, all claims to rights to water in the State, including the Verde River, the Bill Williams River, and the Colorado River, of— (A) the Hualapai Tribe, on behalf of the Hualapai Tribe and the members of the Hualapai Tribe; and (B) the United States, acting as trustee for the Hualapai Tribe, the members of the Hualapai Tribe, and the allottees; (2) to authorize, ratify, and confirm the Hualapai Tribe water rights settlement agreement, to the extent that agreement is consistent with this Act; (3) to authorize and direct the …

White Mountain Apache Tribe Water Rights Quantification Act, United States 117th Congress

Native American Water Rights Settlement Project

The purpose of this amendment to the White Mountain Apache Tribe Water Rights Quantification Act of 2010 is to extend the enforceability date for the deadline for publication of the statement of findings to December 30, 2027 with a repeal date of December 31, 2027 of Title III of the Act for failure to meet the revised deadline. Certain provisions include clarifying funding, cost indexing, cost overrun subaccount (increase in authorized appropriations and prohibition), use of funds (expenditures), oversight and accounting, and other purposes.

Colorado River Indian Tribes Water Resiliency Act Of 2022, United States 117th Congress

Native American Water Rights Settlement Project

This Act authorizes the Colorado River Indian Tribes to enter into lease or exchange agreements and storage agreements relating to water of the Colorado River allocated to the Colorado River Indian Tribes, and for other purposes.

Achieving Climate Justice Through Land Back: An Overview Of Tribal Dispossession, Land Return Efforts, And Practical Mechanisms For #Landback, Vanessa Racehorse

Faculty Scholarship

Due to the increasing pressures of the climate change crisis, federal and state governments are beginning to acknowledge that Indigenous-led stewardship and control over Tribal aboriginal homelands is a crucial component of addressing climate change. In the United States, Tribal nations have a long history of responsible land stewardship, with environmental conservation and respect for the world's biodiversity being an inextricable piece of Tribal customs, traditions, and knowledge. This Article strives to pay due respect to traditional land stewardship and its important role in the past, present, and future.

Part I of this Article starts with an overview of the …

Of Reservation Boundary Lines And Judicial Battle Lines, Part 1 - Reservation Diminishment/Disestablishment Cases From 1962 To 1975: The Indian Law Justice Files, Episode 1, John P. Lavelle

Faculty Scholarship

This Article is the first of a two-part investigation into the Indian law doctrine of reservation diminishment/disestablishment, examining Supreme Court decisions in this area in light of insights gathered from the collected papers of individual Justices archived at the Library of Congress and various university libraries. The Article first addresses Seymour v. Superintendent (1962) and Mattz v. Arnett (1973), observing that these first two diminishment/disestablishment cases are modern applications of basic, longstanding principles of Indian law which are highly protective of Indigenous people’s rights and tribal sovereignty. The Article then examines in detail DeCoteau v. District County Court, the anomalous …

Brief For American Indian Law Scholars As Amicus Curiae, Stephen C., Et Al V. Bureau Of Indian Education, Et Al.,, Barbara L. Creel, Tierra N. Marks, Randolph H. Barnhouse

Faculty Scholarship

Indian Civil Rights/Education Lawsuit

View this and other court documents at Turtle Talk.

Congress’s declared federal policy is “to fulfill the Federal Government’s unique and continuing trust relationship with and responsibility to the Indian people for the education of Indian children.” 25 U.S.C. § 2000. This federal policy is the touchstone of the federal government’s trust obligation to Indian families and their children. When the BIA (through the BIE) fails to protect the rights of Indian children to “educational opportunities that equal or exceed those for all other students in the United States,” courts have a vital role to …

Civil Procedure Update 2021 (Handout And Slide Deck), Verónica Gonzales-Zamora, Julio C. Romero

Faculty Scholarship

This presentation aims to 1) review recent amendments to the state and federal rules of civil procedure; 2) help you understand the impact of recent federal and state published opinions interpreting and applying the rules of civil procedure; and 3) assess your understanding of the updates.

When Imitation Is Not Flattery: Addressing Cultural Exploitation In Guatemala Through A Sui Generis Model, Paul Figueroa

Faculty Scholarship

Indigenous Guatemalan weavers are fighting for intellectual property laws that better protect their designs and other cultural expressions. The exploitation and appropriation by local and international companies has negatively affected the weavers’ livelihoods and resulted in culturally inappropriate uses of spiritual and traditional symbols. Adhering to Western ideals of individual creativity and utility, intellectual property laws in most of the world (including Guatemala) are not suited to protect indigenous creations. To address this legal gap, some countries have adopted sui generis legal regimes that align with communal notions of creation, ownership and stewardship found in indigenous knowledge systems. Based on …

Montana Water Rights Protection Act, United States 116th Congress

Native American Water Rights Settlement Project

The purposes of this Act are: (1) to achieve a fair, equitable, and final settlement of claims to water rights in the State of Montana, and in recognition of article I, and section 3 of article IX, of the Montana State Constitution for (A) the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation; and (B) the United States, for the benefit of the Tribes and allottees; (2) to authorize, ratify, and confirm the water rights compact entered into by the Tribes and the State, to the extent that the Compact is consistent with this Act; (3) to authorize …

Navajo-Utah Water Rights Settlement Act, United States 116th Congress

Native American Water Rights Settlement Project

The purposes of this section are: (1) to achieve a fair, equitable, and final settlement of all claims to water rights in the State of Utah for (A) the Navajo Nation and (B) the United States, for the benefit of the Nation; (2) to authorize, ratify, and confirm the agreement entered into by the Nation and the State, to the extent that the agreement is consistent with this section; (3) to authorize and direct the Secretary (A) to execute the agreement and (B) to take any actions necessary to carry out the agreement in accordance with this section; and (4) …

Aamodt Litigation Settlement Completion, United States 116th Congress

Native American Water Rights Settlement Project

Amends the Aamodt Litigation Settlement Act (Pub. L. 11-291) to increase funding for Pueblo Water Facilities from $106.4 million to $243.4 million and making available $137 million for Regional Water System funding.

Civil Procedure Update 2020: New Mexico Annual Judicial Conclave, Verónica C. Gonzales-Zamora, George Bach

Faculty Scholarship

These materials are part of a presentation on civil procedure given to magistrate, district, appellate, and tribal court judges, justices, and staff attorneys in New Mexico courts. These materials include the language of approved and proposed amendments to the state and federal rules of civil procedure as well as summaries of relevant appellate cases issued by the New Mexico Supreme Court and Court of Appeals, the Supreme Court of the United States, and the Supreme Court of the Navajo Nation between May 1, 2019 to May 1, 2020.

• Amendments to the New Mexico Rules of Civil Procedure include NMRA Rule …

The Indigenous Decade In Review, Christine Zuni Cruz

Faculty Scholarship

This Article considers the decade, 2010 to 2019, in respect to indigenous peoples in the United States. The degree of invisibility of indigenous peoples, in spite of the existence of 574 federally recognized tribes with political status, is a central issue in major cases and events of the decade. Land and environment, social concerns, and collective identity are the three areas through which this Article considers the decade. The Declaration on the Rights of Indigenous Peoples, endorsed in 2010, sets a measure for the nation-state’s engagement with indigenous peoples possessed of self-determination. The criticality of a new place in the …

Red River, White Law, Laura Spitz

Faculty Scholarship

No matter how well-intended, advocates reaching for personhood on behalf of rivers in the United States must think carefully about how to meaningfully engage the Indigenous peoples directly affected, or risk continuing practices of colonization. In that sense, the Colorado River case was a missed opportunity to contextualize the claim in terms of local Indigenous laws and cultures. Its dismissal provides an opportunity to reset and reach out before moving forward again.

Federal Indian Law, Verónica C. Gonzales-Zamora

Faculty Scholarship

Introduction to Federal Indian Law, broken down by years: 1492, 1787, 1828, 1887, 1934, 1953, 1968 to the present. Includes major cases and additional resources.

Brief For Southwest Indian Law Clinic As Amici Curiae, United States V. Smith, Verónica C. Gonzales-Zamora, Barbara L. Creel

Faculty Scholarship

Prior cases, have assumed, without analysis that the ACA applies to Indian Country. This review of the ACA failed to consider and incorporate clearly established Indian law principles and foundational tenets of criminal law in the analysis of its applicability to Indians and Indian Country. Most importantly, the precedent and the Court below failed to understand the racial component involved in the analysis. These failures to understand the principles of Indian law and criminal law, have rendered haphazard and incoherent decisions.

Amici seek to bring clarity to the complex jurisdictional interplay and provide a practical framework for the proper analysis …

Human "Being", Laura Spitz

Faculty Scholarship

In this summary, Professor Spitz discusses how the Douglas Treaties acknowledged Aboriginal title when negotiations with Indigenous populations when purchasing land. She looks at how what the definition of “human being” is during the 18th century and how Douglas’ respect of Aboriginal land title also indicated he was these people as people. This diverges from categorizations surrounding the term Indian, and its implication that populations were subhuman and/or a different species.

Douglas is still embedded in a larger social and legal structure even as he understands indigenous populations as human when it comes to resources and allocations. Where the …

Community Engagement And Social Activism In Legal, Aliza Organick

Faculty Scholarship

Organick encourages new law faculty to reach out to the clinicians on your faculty for support, potential collaborative projects. This benefits students, and lays the foundation for meaningful friendships.

Courts Also Won (Albuquerque) Mayoral Election, Kevin Washburn

Faculty Scholarship

In the 2017 Albuquerque mayoral election, one of the candidates sought to make the election a referendum on the New Mexico judiciary and was soundly defeated. In this respect, in addition to candidate and now Mayor-elect Time Keller, the courts also won the election.

Brief For The Council Of University Presidents On Legislative Council V Martinez As Amicus Curiae, No. S-1-Sc-36422, Kevin Washburn

Faculty Scholarship

On April 7, 2017, the Governor exercised an extraordinary line-item veto of portions of the Fiscal Year 2018 appropriation bill eliminating all funding for the Legislature and for higher education in New Mexico. Governor's House Executive Message No. 56 (April 7, 2017), Petitioner's Exhibit D, at 3-7. Amici have a fiduciary responsibility to their institutions to advocate for a resolution quickly to mitigate the many harms caused by this budget crisis. CUP takes no position on the outcome of this action, but Amici do request that this case be decided expeditiously so that other constitutional actors do not waste time …

What The Future Holds: The Changing Landscape Of Federal Indian Policy, Kevin Washburn

Faculty Scholarship

Since first described by Chief Justice John Marshall, the United States has been deemed to have a moral and legal “trust responsibility” to the American Indian tribal nations that gave way so that the United States could exist. For nearly two centuries, the trust responsibility reflected a paternalistic view toward Indian tribes. As the United States has developed a more enlightened policy characterized by greater respect for “tribal self-governance,” tribal governments have experienced a renaissance. Federal policy has moved away from federal control and toward tribal empowerment. As a result, the trust responsibility’s paternalistic features have come to seem anachronistic, …

Comment Re Rule 10 Of The Minnesota General Rules Of Practice For The District Courts, Kevin Washburn

Faculty Scholarship

No abstract provided.

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

Publications

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 …

Explaining The Modernized Leasing And Right-Of-Way Regulations For Indian Lands, Kevin Washburn, Jody Cummings

Faculty Scholarship

The Obama Administration enacted significant reforms to the regulatory rules governing federal leasing and right of way approvals across tribal lands in Parts 162 and 169 of the Indian title of the federal regulations. These reforms had many aims. They sought to improve the environment for economic development on Indian reservations by speeding regulatory approvals, increasing predictability (by, in part, narrowing agency discretion), and increasing deference to tribal governmental decisions. The reforms sought to help tribal governments capture economic value that had previously been denied them, for example, by preventing so called "piggybacking" on pre-existing rights of way and clarifying …

Pechanga Band Of Luiseño Mission Indians Water Rights Settlement Act, United States 114th Congress

Native American Water Rights Settlement Project

Federal Legislation: Pechanga Band of Luiseño Mission Indians Water Rights Settlement Act (WIIN Act of 2016, Title III - Natural Resource, Subtitle D). Parties: Pechanga Band of Luiseño Mission Indians, United States. The lead agency for environmental compliance is the Bureau of Reclamation. The Act confirms the Tribal water right as The Act designates that 1) the rights of allottees are protected; 2) a Tribal Water Right of up to 4,994 acre-feet of water per year is confirmed in accordance with Interlocutory Judgement No. 41 as affirmed by the Fallbrook Decree; 3)water right can be used for any purpose; 4) …

San Luis Rey Settlement Agreement Implementation Act Of 2016, Settlement Parties, United States 114th Congress

Native American Water Rights Settlement Project

Congressional approval and ratification of the San Luis Rey Settlement Agreement.

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 …