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Full-Text Articles in Law
Creating An Environmental No-Man's Land: The Tenth Circuit's Departure From Environmental And Indian Law Protecting A Tribal Community's Health And Environment, Claire R. Newman
Creating An Environmental No-Man's Land: The Tenth Circuit's Departure From Environmental And Indian Law Protecting A Tribal Community's Health And Environment, Claire R. Newman
Washington Journal of Environmental Law & Policy
When Congress set aside reservations as permanent homelands for American Indian people, it intended that the reservations remain “livable environments.” When resource conflicts arise in “checkerboard” areas outside Indian reservations—where land ownership alternates between a tribe, state, the federal government and private, non-Indian landowners—disputes over regulatory jurisdiction and environmental protection intensify. Two recent Tenth Circuit opinions determining the next generation of uranium mining in the checkerboard area of the Navajo Nation, depart from the intent of environmental laws and fail to uphold federal agencies’ trust responsibilities to the Tribe. These cases illustrate the legal vulnerabilities tribal communities in checkerboard areas …
Banishing Habeas Jurisdiction: Why Federal Courts Lack Jurisdiction To Hear Tribal Banishment Actions, Mary Swift
Banishing Habeas Jurisdiction: Why Federal Courts Lack Jurisdiction To Hear Tribal Banishment Actions, Mary Swift
Washington Law Review
The Indian Civil Rights Act (ICRA or “the Act”) of 1968 grants members of federally recognized Indian tribes individual civil rights similar to those enumerated in the federal Bill of Rights and Fourteenth Amendment. However, the Act provides only one explicit federal remedy for violations of the rights secured therein: the writ of habeas corpus. The U.S. Supreme Court has refused to read an implied cause of action into the Act. Some federal courts assert habeas jurisdiction to review tribal banishment actions alleged to violate ICRA, but not over disenrollment actions. Tribal banishment means an individual tribal member is cast …
Dewatering Trust Responsibility: The New Klamath River Hydroelectric And Restoration Agreements, Thomas P. Schlosser
Dewatering Trust Responsibility: The New Klamath River Hydroelectric And Restoration Agreements, Thomas P. Schlosser
Washington Journal of Environmental Law & Policy
In order to protect Indian property rights to water and fish that Indians rely on for subsistence and moderate income, the Interior Department Solicitor has construed federal statutes and case law to conclude that the Department must restrict irrigation in the Klamath River Basin of Oregon and Northern California. Draft legislation, prescribed by the February 18, 2010 Klamath River Hydroelectric Agreement and the Klamath Basin Restoration Agreement, would release the United States from its trust duty to protect the rights of Indian tribes in the Klamath River Basin. The agreements will also prolong the Clean Water Act Section 401 application …
Addressing The Overrepresentation Of The Maori In New Zealand's Criminal Justice System At The Sentencing Stage: How Australia Can Provide A Model For Change, Joanna Hess
Washington International Law Journal
New Zealand’s 2002 Sentencing Act provides several ways a sentencing court may take an offender’s cultural or ethnic background into account. Given the disproportionate rate of recidivism among New Zealand’s indigenous Maori offenders and international and domestic concerns regarding this problem, the Act’s provisions offer one method for addressing and mitigating this issue. However, these sentencing provisions remain largely unknown or underused. This comment argues that in order to tackle these concerns, left unaddressed by the current Sentencing Act, New Zealand should restructure its sentencing provisions to follow the legislative model that is developing in Australian states, particularly the model …
Aboriginal Title In The Canadian Legal System: The Story Of Delgamuukw V. British Columbia, Robert T. Anderson
Aboriginal Title In The Canadian Legal System: The Story Of Delgamuukw V. British Columbia, Robert T. Anderson
Chapters in Books
Canada is grappling with legal issues surrounding indigenous property rights on a scale not seen in the United States since the mid-nineteenth century. Fundamental questions of fairness and justice related to indigenous peoples’ property rights are in flux in the province of British Columbia–an area the size of the states of California, Oregon, and Washington combined. The recognition of aboriginal rights in the Canadian Constitution in 1982 and recent judicial developments made it clear to the provincial government that nearly the entire province may be subject to aboriginal title claims. Consequently, the aboriginal nations and B.C. government have embarked on …