Law Commons^™

Beyond The Belloni Decision: Sohappy V. Smith And The Modern Era Of Tribal Treaty Rights, Monte Mills

Articles

Indian tribes and their members are leading a revived political, legal, and social movement to protect the nation’s natural resources. In doing so, tribes and their allies employ many effective strategies but core to the movement are the historic promises made to tribes by the United States through treaties. Tribes are asserting treaty-protected rights, which the United States Constitution upholds as the supreme law of the land, to defend the resources on which they and their ancestors have relied for generations. Those claims have resulted in significant legal victories, igniting a broader movement in favor of tribal sovereignty and securing …

Slides: Indigenous Water Justice In The Columbia River Basin, Barbara Cosens

Indigenous Water Justice Symposium (June 6)

Presenter: Barbara Cosens, Professor and Associate Dean of Faculty, University of Idaho College of Law, Waters of the West Interdisciplinary Program

17 slides

Agenda: A Celebration Of The Work Of Charles Wilkinson: Served With Tasty Stories And Some Slices Of Roast, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

A Celebration of the Work of Charles Wilkinson (Martz Winter Symposium, March 10-11)

Conference held at the University of Colorado, Wolf Law Building, Wittemyer Courtroom, Thursday, March 10th and Friday, March 11th, 2016.

Conference moderators, panelists and speakers included University of Colorado Law School professors Phil Weiser, Sarah Krakoff, William Boyd, Kristen Carpenter, Britt Banks, Harold Bruff, Richard Collins, Carla Fredericks, Mark Squillace, and Charles Wilkinson

"We celebrate the work of Distinguished Professor Charles Wilkinson, a prolific and passionate writer, teacher, and advocate for the people and places of the West. Charles's influence extends beyond place, yet his work has always originated in a deep love of and commitment to particular places. We …

Agenda: Free, Prior And Informed Consent: Pathways For A New Millennium, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, University Of Colorado Boulder. School Of Law. American Indian Law Program

Free, Prior and Informed Consent: Pathways for a New Millennium (November 1)

Presented by the University of Colorado's American Indian Law Program and the Getches-Wilkinson Center for Natural Resources, Energy & the Environment.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), along with treaties, instruments, and decisions of international law, recognizes that indigenous peoples have the right to give "free, prior, and informed consent" to legislation and development affecting their lands, natural resources, and other interests, and to receive remedies for losses of property taken without such consent. With approximately 150 nations, including the United States, endorsing the UNDRIP, this requirement gives rise to emerging standards, obligations, and opportunities …

Never Construed To Their Prejudice: In Honor Of David Getches, Richard B. Collins

Publications

This article reviews and analyzes the judicial canons of construction for Native American treaties and statutes. It discusses their theoretical justifications and practical applications. It concludes that the treaty canon has ready support in contract law and the law of treaty interpretation. Justification of the statutory canon is more challenging and could be strengthened by attention to the democratic deficit when Congress imposes laws on Indian country. Applications of the canons have mattered in disputes between Indian nations and private or state interests. They have made much less difference, and have suffered major failings, in disputes with the federal government. …

Agenda: Drafting Model Laws On Indoor Pollution For Developing And Developed Nations, University Of Colorado Boulder. Center For Energy & Environmental Security, Colorado Natural Resources, Energy And Environmental Law Review

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

On July 12 and 13, 2012, experts convened at Colorado Law to demonstrate the extent to which a model law could help address the global problem of indoor air pollution from inefficient cook stoves. The air pollution that results from inefficiently burning biomass as fuel for cooking has serious health and climatic consequences. The workshop produced two sets of Model Laws and commentaries to help nations solve the problem, and the commentaries were published in the Colorado Natural Resources, Energy, and Environmental Law Review.

Drafting Model Laws On Indoor Pollution For Developing And Developed Nations Workshop, July 12-13, 2012, Boulder, Colorado: Introduction, Lakshman Guruswamy

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

11 pages.

"This Essay introduces the framework for deliberation and legislative drafting undertaken at the workshop: Drafting Model Laws on Indoor Pollution for Developing and Developed Nations on July 12-13, 2012, in Boulder, Colorado. There are a number of fundamental premises upon which the workshop was based, and this Essay refers to the most salient among them."-- Excerpted from 24 Colo. Nat. Resources, Energy & Envtl. L. Rev. 319 (2013).

Indian Nations And The Federal Government: What Will Justice Require In The Future? Claims Against The Sovereign 20th Jusicial Conference Of The United States Court Of Federal Claims, Charles Wilkinson

Publications

No abstract provided.

The Salmon People, Judge Boldt, And The Rule Of Law, Charles F. Wilkinson

Publications

No abstract provided.

Judicial Regrets And The Case Of The Cushman Dam, William H. Rodgers, Jr.

Articles

This essay is a criticism of the Ninth Circuit's en banc decision in Skokomish Indian Tribe v. United States [401 F.3d 979 (9th Cir. 2005]. It finds particular fault with the court's understanding of Indian treaty rights as "something given," and its outlandish conclusion that fishing was not a "primary purpose" of the Stevens treaties.

The article further criticizes the court's treatment of the "continuing nuisance" doctrine that is applied to afford a statute of limitations defense to enterprises that did lasting environmental damage by diverting the entire North Fork of the Skokomish River out of the watershed.

It concludes …

Governance Within The Navajo Nation: Have Democratic Traditions Taken Hold?, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

This essay crafts a description and analysis of the political and institutional context, structures, and issues of the Navajo Nation's government. We begin with a demographic, institutional, and ideological assessment of the nation as its currently stands, move to a historical overview of the nation from precontact times to the 1989 riots and conclude with a short policy portfolio of three issues—land claims, gaming, and taxation—that will likely impact the shape and direction the nation will head into the twenty-first century.

Clinton's Legacy On Indigenous Issues, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

The president, of course, has not express constitutional responsibility for Indian nations—that is a power reserved to the Congress under the commerce clause. Nevertheless, it is to the president, dating back to George Washington, who had an active hand in Indian affairs through the treaty process, that tribal nations and their leaders have most often looked to gauge the federal government's character and commitment to fulfill the nation's historic treaty and ongoing trust obligations to indigenous people.

The Reinvigoration Of The Doctrine Of Implied Repeals: A Requiem For Indigenous Treaty Rights, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

America's indigenous nations occupy a distinctive political within the United States as separate sovereigns whose rights in the doctrine of inherent tribal sovereignty, affirmed in hundreds of ratified treaties and agreements, acknowledged in the Commerce the U.S. Constitution, and recognized in ample federal legislation case law. Ironically, while indigenous sovereignty is neither ally defined or delimited, it may be restricted or enhanced by One could argue, then, that indeterminacy or inconsistency of the tribal-federal political/legal relationship.

The Indigenous Peoples Of The Usa: Issues And Challenges Of Native Americans, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

Vine Deloria, Jr., the most important Indian chronicler of indigenous political, legal, and religious experience in the U.S. in the last thirty years, noted recently that Indian life, particularly the experience of reservation-based tribal peoples, "has only the slightest resemblance to the conditions of three decades ago, and the current situation has elements of hope and portents of disaster." This observation is even more realistic as we sit at the dawn of the new millennium. The 560 indigenous polities in the U.S.—374 Indian nations, tribes, bands, communities, and Pueblos in the lower 48 states; 226 are Alaska Native villages and …

Quit-Claiming The Doctrine Of Discovery: A Treaty-Based Reappraisal, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

The discovery doctrine is one of the baseline legal concepts that has worked to seriously disadvantage the land rights of indigenous nations in the United States because it asserts, as one of its definitions, that the "discovering" European nations and their successor states, gained legal title to Indian lands in North America. The author argues, using comparative colonial and early American treaty, legislative, and other historical data, that this definition is a legal fiction. In historical reality, discovery was merely an exclusive and preemptive right that vested in the discovering state the right of first purchase.

Tribal-State Affairs: American States As 'Disclaiming' Sovereigns, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

The history of tribal-state political relations has been contentious from the beginning of the republic. As a result of these tensions, the relationship of tribal nations and the federal government was federalized when the U.S. Constitution was ratified in 1788. Thus, a number of states, especially in the West, were required in their organic acts and constitutions to forever disclaim jurisdiction over Indian property and persons. This article analyzes these disclaimer clauses, explains the factors that have enabled the states to assume some jurisdictional presence in Indian Country, examines the key issues in which disclaimers continue to carry significant weight, …

Indigenous Nations And International Trade, Robert Berry

Librarian Publications

In an era where economic policy must be increasingly fashioned in global terms, the economies of Indigenous Nations in present-day Canada and the United States remain isolated from international commerce.These nations--once independent, now governed by a supervising state --in most cases cannot be said to enjoy evenan unhindered access to commerce within the states that surround them. Indeed, the insularity of the North American Indigenous Nations is a fundamental feature of their existence and, too, a formidable barrier to these nations' ability to establish vibrant and diversified economies.

This Note examines the central role that trade played in relations …

Conquering The Cultural Frontier: The New Subjectivism Of The Supreme Court In Indian Law, David H. Getches

Publications

For a century and a half, the Supreme Court was faithful to a set of foundation principles respecting Indian tribal sovereignty. Though the United States can abrogate tribal powers and rights, it can only do so by legislation. Accordingly, the Court has protected reservations as enclaves for Indian self-government, preventing states from enforcing their laws and taxes, and holding that even federal laws could not be applied to Indians without congressional permission. Recently, however, the Court has assumed the job it formerly conceded to Congress, considering and weighing cases to reach results comporting with the Justices' subjective notions of what …

"Constructing" Nation Within States: The Quest For Federal Recognition By The Catawba And Lumbee Tribes, Anne Merline Mcculloch, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

Creating and in some cases re-creating viable tribal political communities within the construct of modern nation-state has proven to be a troublesome task for indigenous populations worldwide. The task for indigenous governments in the United States has been further complication by federalism's divisions of power between the states and the national government. Native American tribes often find themselves waging a two-front battle in which they must resist state encroachments over their lands and their inherent government authority; while at the same time they must lobby the federal government for protection of those same lands and powers.

History is replete with …

The Cloaking Of Justice: The Supreme Court's Role In The Application Of Western Law To America's Indigenous Peoples, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

The debate over which legal Indigenous Peoples should govern Native American political power and property rights, or even whether they should be protected by law at all, caused conflicts challenging the autonomy of the legal system and led to changes of the original principles of Indian rights. The outcome of that conflict raises two questions of federal Indian law. One is where its principles contributed to the survival of Native Americans in the United States; the other is whether the same legal principles are responsible for the perpetual inferiority of Natives Americans in their own land. More starkly, the question …

Who's In Charge Of U.S. Indian Policy?: Congress And The Supreme Court At Loggerheads Over American Indian Religious Freedom, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

The federal government's three branches—executive, legislative, judicial, and that unwieldy mass known simply as "the bureaucracy" have, during the last half-decade—1987-1991—produced a dizzying crop of laws, policies, proclamations, regulations, and court decisions which have served simultaneously to 1) reaffirm tribal sovereignty; 2) permit and encourage greater state interference within Indian Country; 3) enhance federal legislative authority over tribes; and 4) deny constitutional free-exercise protections both to individual Indians and to tribes.

On the legislative side, Congress has established the experimental Tribal Self-Governance Demonstration Project which is a major step towards restoring the tribal right of self-determination, and is discussing the …

Indian Consent To American Government, Richard B. Collins

Publications

No abstract provided.

Washington V. Washington State Commercial Passenger Fishing Vessel Assn., Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Delaware Tribal Business Committee V. Weeks, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Antoine V. Washington, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Agreement With Certain Indians.

American Indian and Alaskan Native Documents in the Congressional Serial Set: 1817-1899

Agreement with the Kiowas, Apaches, and Comanches. 6 Feb. HR 1775, 53-3, v2, 3p. [3346] Land cessions in Oklahoma opposed by the Indians who thought the lands were not to be opened until 1898 (the expiration date of the 1868 treaty at Medicine Lodge); Choctaws and Chickasaws claim title to the land.

Appropriation For Fulfilling Treaty Stipulations With Various Indian Tribes.

American Indian and Alaskan Native Documents in the Congressional Serial Set: 1817-1899

Appropriation for Fulfilling Treaty Stipulations. 3 Feb. HR 2419,52-2, v2, 1p. [3141] For fiscal 1894; various tribes.

[Resolution Presented By Mr. Mitchell.]

American Indian and Alaskan Native Documents in the Congressional Serial Set: 1817-1899

Resol. of Sen. Mitchell. 7 Jan. SMD 19, 52-2, v1 , 1p. [3064] Asks information on a treaty made 11 Aug. 1855 with various tribes inhabiting the coast of Oregon.

Publication And Distribution Of Public Documents. Communication From J. G. Ames, Superintendent Of Documents, Department Of The Interior, A. R. Spofford, Librarian Of Congress, And Spencer F. Baird, Secretary Of The Smithsonian Institution, In Compliance With A Resolution Of The House Of Representatives Relative To The Publication And Distribution Of Public Documents.

American Indian and Alaskan Native Documents in the Congressional Serial Set: 1817-1899

Publication and Distribution of Public Documents. [2115] Binding of copies of Durant's collection of revised Indian treaties (act of 20 June 1874).

The Public Domain. Its History, With Statistics, With References To The National Domain, Colonization, Acquirement Of Territory, The Survey, Administration And Several Methods Of Sale And Disposition Of The Public Domain Of The United States. With Sketch Of Legislative History Of The Land States And Territories, And References To The Land System Of The Colonies, And Also That Of Several Foreign Governments.

American Indian and Alaskan Native Documents in the Congressional Serial Set: 1817-1899

Report on the Public Domain. [2155-2158] Land laws, and land statistics; Indian reservations and Indian Territory; digest of relevant Indian treaties (Serial 2158).