Law Commons^™

Developing Case Law: The Future Of Consultation And Accommodation, Gordon Christie

All Faculty Publications

The aim in this paper is twofold. First, the historical development of the case law around the duty to consult will be laid out (e.g. Delgamuukw v. British Columbia and subsequent cases) and an attempt will be made to make sense of this body of jurisprudence (on both doctrinal and critical levels). Second, an attempt will be made to read out of the current doctrine how future events may unfold 'on the ground' in the legal and political arena in British Columbia and elsewhere in Canada.

Today's Indian Wars: Between Cyberspace And The United Nations, S. James Anaya

Publications

No abstract provided.

Contextualizing The Losses Of Allotment Through Literature, Kristen A. Carpenter

Publications

In this article, the Author undertakes a law and literature approach to a major Indian law problem: understanding the losses of allotment. Allotment was a mid 19th - early 20th century federal legislative program to take large tracts of land owned by Indian tribes, allocate smaller parcels to individual Indians, and sell off the rest to non-Indians. The idea was that Indians would abandon traditional patterns of subsistence to become American-style farmers, and great tracts of land would be freed up for the advance of white settlement. A key component of the federal government's larger project of assimilating Indians into …

"Peoples Distinct From Others": The Making Of Modern Indian Law, Charles Wilkinson

Publications

No abstract provided.

Indian Givers: What Indigenous Peoples Have Contributed To International Human Rights Law, S. James Anaya

Publications

No abstract provided.

Defending The Polygon: The Emerging Human Right To Communal Property, Thomas T. Ankersen, Thomas K. Ruppert

Oklahoma Law Review

No abstract provided.

Respecting And Protecting The Sacred, Darlene Johnston

All Faculty Publications

In Canada, many citizens are justifiably proud of our country’s commitment to multiculturalism and respect for diversity. Cultural variations in language, art, law, and religion are not only tolerated but also celebrated. There is a growing appreciation that as human beings we share common, fundamental categories of experience, but that those experiences are mediated by and need to be understood in terms of our particular cultural contexts. Just as different cultures have different approaches to land and property, so too do traditions of sacredness vary. But respect for such variations, particularly as between Aboriginal peoples and newcomers to Canada, has …

Kansas V. Prairie Band Potawatomi Nation: Undermining Indian Sovereignty Through State Taxation, Jesse K. Martin

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

The "Actual State Of Things": Teaching About Law In Political And Historical Context, David E. Wilkins

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

Vine Deloria, Jr., the most prolific Native writer and one of the most gifted intellectuals in American history, left a deep imprint in many of the fields he so artfully plowed, including: education, religion, politics, cultural critic, history, and indigenous knowledge. His scholarship on specific subjects came in waves, with each wave building upon the previous one before reaching its remarkable crest.

Deloria's scholastic and pragmatic legacy in federal Indian law and policy and indigenous governance is one that has produced several major books and numerous articles, which, in the pantheon of Deloria's prodigious body of works, rank highly in …

Vine Deloria Jr. And Indigenous Americans, David E. Wilkins

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

Vine Deloria Jr., a Standing Rock Sioux citizen, widely considered the leading indigenous intellectual of the past century, walked on in November 2005. Deloria spent most of his adult life in an unrelenting, prodigious, and largely successful effort to provide those most grounded of Native individuals and their governments with the intellectual, theoretical, philosophical, and substantive arguments necessary to support their inherent personal and national sovereignty. Importantly, however, his voluminous work also sought to improve the nation-to-nation and intergovernmental relationships of and between First Nations, and between First Nations and non-Native governments at all levels. In fact, he was hailed …

Forging A Political, Educational, And Cultural Agenda For Indian Country: Common Sense Recommendations Gleaned From Deloria's Prose, David E. Wilkins

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

Fortunately for the human species, in its wide assortment of pigmentations, cultural experiences, and geographic locations, each generation of a given people produces a small number of truly spirited individuals. These are individuals who not only possess the ability to constructively critique and analyze what is both sound and problematic in their society—or for our purposes, a set of societies—but who also have the rarer gift of being able to propound suggestions, ideas, and prognostications on what might be done to improve the human condition, both individually and collectively.

In the breadth and depth of Vine Deloria Jr.'s copious works …

Truth Or Consequences: Settling Water Disputes In The Face Of Uncertainty, Barbara Cosens

Articles

No abstract provided.

2005 Indian Water Rights Settlement Conference Keynote Address, Barbara Cosens

Articles

In September 2005, Native American Rights Fund and Western States Water Council brought the Indian Water Rights Settlement Conference to Moscow, Idaho. Native American Rights Fund is the oldest and largest nonprofit dedicated to asserting and defending Native American interests nationwide, and the Western States Water Council is composed of representatives appointed by the governors of eighteen western states, including Idaho. The conference brings together panel members representing tribal, state, federal agency, congressional, local, and environmental interests to discuss, argue, and at times resolve current issues facing the many efforts to settle Indian water rights in the western United States. …

Reserved Indian Water Rights In Riparian Jurisdictions: Water, Water Everywhere, Perhaps Some Drops For Us, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

In this Article, the author explores the question of whether nonfederally recognized eastern Indian tribes can claim reserved tribal rights to water under the Winters doctrine. The urgency of resolving this question in the tribes 'favor is underscored by the mounting problem of water scarcity in the East, where most such tribes live, and the problems these tribes have in claiming water under the prevailing systems for managing water in that part of the country, riparianism and regulated riparianism. Recognizing that, to date, these rights have been claimed almost exclusively by federally recognized western tribes who live on withdrawn federal …

Teaching Decolonization: Reacquisition Of Indian Lands Within And Without The Box - An Essay, G. William Rice

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Kennewick Man And The Meaning Of Life, Steven Goldberg

Georgetown Law Faculty Publications and Other Works

When Native Americans and scientists clashed over ownership of the ancient remains of Kennewick Man it was, in part, a dispute between the needs of the traditional culture and those of the modern research establishment. But more was at stake. The Native Americans wanted to rebury the remains because their emotional relationship with Kennewick Man is tied to their view of their origins. But the scientists also had an emotional attachment to the scientific position. The question of who were the First Americans satisfies a yearning for scientific origin stories. The dispute here parallels the controversy over evolution. Creationists care …

Creating A Tribal Law Practice Clinic In Kansas: Carving The Peg To Fit The Hole, Aliza Organick

Faculty Scholarship

This article will focus on three main challenges in creating a tribal court practice clinic. The first part will address creating a tribal court focus within an existing clinic curriculum. The second part will address the process of designing a curriculum for the TCPC that includes incorporating the basic doctrinal foundations of federal Indian law, as well as the clinical skills necessary to practice in a tribal court setting. The third part will offer some concluding thoughts on my long-term plans and dreams for TCPC.

When The State Bar Exam Embraces Indian Law: Teaching Experiences And Observations, Gloria Valencia-Weber, Sherri Nicole Thomas

Faculty Scholarship

In 2002, New Mexico became the first state to place Indian law on the state bar exam. This decision made basic knowledge of Indian law part of the competency expected of all licensed attorneys. This result arose from the University of New Mexico School of Law's (UNM) significant role as the only law school in the state. In combination with the social and political history of the state these elements produced this historic result. This paper outlines the history of Indian law at UNM and discusses the formal process that placed Indian law on the state's bar exam. The discussion …

Toward A Pedagogy And Ethic Of Law/Lawyering For Indigenous Peoples, Christine Zuni Cruz

Faculty Scholarship

This article is prefaced with a reflection on Indigenous Peoples in the legal profession which leads into a discussion on the pedagogy and preparation of Indigneous students in law. It addresses the current pedagogy employed in training indigenous students in law and proposes a reframing of this preparation by including and employing an indigenous perspective and intellectual tradition of leadership. It considers the relationship of the Indian law academician with indigenous justice systems. The article addresses the influence on pedagogy that emerges from the Indigenous legal tradition, and the importance of incorporating these influences into the education and preparation of …

American Indians, Crime, And The Law, Kevin Washburn

Faculty Scholarship

This Article evaluates the federal Indian country criminal justice regime, not against norms of Indian law and policy, but against those of criminal law and policy. Specifically, this Article evaluates the federal constitutional norms that lie at the heart of American criminal justice and that are designed to ensure the legitimacy of federal criminal trials. Toward that end, Part I presents a critical description of key facets of the federal Indian country criminal justice system. Part II begins the critical evaluation by evaluating a key institutional player in the federal system, the federal prosecutor. It highlights the handicaps faced by …

Federal Criminal Law And Tribal Self-Determination, Kevin Washburn

Faculty Scholarship

Under the rubric of "tribal self-determination," federal policymakers have shifted federal governmental power and control to tribal governments in nearly all areas of Indian policy. Normatively, this shift reflects an enlightened view about the role of Indian tribes in Indian policy. As a practical matter, it has also improved services to Indians on reservations by placing functions with tribal service providers who are more knowledgeable and more accountable than their federal counterparts. Despite broad adoption of self-determination as the dominant federal policy, felony criminal justice on Indian reservations has remained an exclusive federal function, and a highly ineffective enterprise, according …

Tribal Self-Determination At The Crossroads, Kevin Washburn

Faculty Scholarship

The tribal self-determination initiative that began transforming federal Indian policy thirty years ago has reached a crossroads. Despite its transformative effects on tribal governments and the widespread belief that self-determination has been a successful federal approach to Indian affairs, no significant new self-determination program has been initiated at the congressional level in several years. This Article looks to the tribal self-determination initiative's past to gain insights about its future. It also briefly surveys existing tribal self-determination programs and concludes that far more work needs to be done to achieve tribal self-determination. Drawing on the author's broader work, it finds one …

Indian Water Rights: Litigation And Settlements, Robert T. Anderson

Articles

This article provides a brief overview of the law of Indian and federal reserved water rights and continues with an examination of the Snake River Water Rights Act. The Act serves as a vehicle for discussion of what is right and what is wrong with the current Indian water rights settlement process. Finally, the article suggests that the Administration modify the portion of its criteria and procedures for Indian water settlements dealing with federal financial contributions. These criteria and procedures need to more accurately reflect the realities of past settlements and promote more successes like the Snake River Water Rights …

The Metamorphosis Of Aboriginal Title, Brian Slattery

Articles & Book Chapters

Aboriginal title has undergone a significant transformation from the colonial era to the present day. In colonial times, aboriginal title was governed by Principles of Recognition based on ancient relations between the Crown and Indigenous American peoples. With the passage of time, this historical right has evolved into a generative right, governed by Principles of Reconciliation. As a generative right, aboriginal title exists in a dynamic but latent form, which is capable of partial articulation by the courts but whose full implementation requires agreement between the Indigenous party and the Crown. The courts have the power to recognize the core …

Connecting People To Place: Great Lakes Aboriginal History In Cultural Context, Darlene Johnston

All Faculty Publications

The author was asked to review the historical connection of Aboriginal people to the land that lies between Lake Huron and Lake Erie. She is a descendant of Great Lakes Aboriginal ancestors. Aboriginal history and self-understanding is conveyed across generations by stories and teachings grounded in particular landscapes. As a legally-trained historian, the author is familiar with the methods and protocols used in the document-based tradition. Her research method combines oral tradition and archival materials in order construct historical narratives in their cultural context. The task of connecting particular people to a specific place in a given time period is …