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Indigenous, Indian, and Aboriginal Law

2016

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Articles 1 - 30 of 75

Full-Text Articles in Law

United States V. Washington, Kirsa Shelkey Dec 2016

United States V. Washington, Kirsa Shelkey

Public Land & Resources Law Review

Pacific Northwest Treaties, now known as the Stevens Treaties, were negotiated in the 1850’s between the U.S. and Indian tribes, including the Suquamish Indian Tribe, Jamestown S'Klallam, Lower Elwha Band of Klallams, Port Gamble Clallam, Nisqually Indian Tribe, Nooksack Tribe, Sauk-Suiattle Tribe, Skokomish Indian Tribe, Squaxin Island Tribe, Stillaguamish Tribe, Upper Skagit Tribe, Tulalip Tribes, Lummi Indian Nation, Quinault Indian Nation, Puyallup Tribe, Hoh Tribe, Confederated Tribes and Bands of the Yakama Indian Nation, Quileute Indian Tribe, Makah Indian Tribe, Swinomish Indian Tribal Community, and the Muckleshoot Indian Tribe (“Tribes”). The Stevens Treaties stated that “the right of taking fish, …


Co-Developing Drugs With Indigenous Communities: Lessons From Peruvian Law And The Ayahuasca Patent Dispute, Daniel S. Sem Dec 2016

Co-Developing Drugs With Indigenous Communities: Lessons From Peruvian Law And The Ayahuasca Patent Dispute, Daniel S. Sem

Richmond Journal of Law & Technology

This paper will examine the issues surrounding the codevelopment of drugs derived from traditional medicines used by indigenous peoples in Amazonia, with a focus on Peru. In particular, this paper will explore what national, regional and international legal structures are in place to protect the interests of indigenous peoples, while at the same time providing medical benefit to the world. This issue is explored in the context of Peruvian, U.S., and international treaties – especially the TRIPS agreement, the Andean Community, sui generis protections, and the US-Peru Trade Promotion Agreement.


Aboriginal Consultation In Canadian Water Negotiations:The Mackenzie Bilateral Water Management Agreements, Andrea Beck Oct 2016

Aboriginal Consultation In Canadian Water Negotiations:The Mackenzie Bilateral Water Management Agreements, Andrea Beck

Dalhousie Law Journal

Due to constitutional protection of Aboriginal water rights, the Canadian government has a duty to consult Aboriginal peoples in water-related decision making. In 2015, Alberta and the Northwest Territories signed an agreement for managing their shared waters in the Mackenzie River Basin. In light of Canada's record, observers have praised the preceding negotiation process as pathbreaking due to its high level of Aboriginal involvement. To evaluate such claims, this paper analyzes Aboriginal consultations in the 2011-2015 NWT-Alberta transboundary water negotiation. The comparative case study reaches the following conclusions. In their bilateral water negotiation, the two jurisdictions differed markedly in terns …


Pursuing A Reconciliatory Administrative Law: Aboriginal Consultation And The National Energy Board, Matthew J. Hodgson Sep 2016

Pursuing A Reconciliatory Administrative Law: Aboriginal Consultation And The National Energy Board, Matthew J. Hodgson

Osgoode Hall Law Journal

Environmental assessment within the process of regulatory review is recognized as the preferred means for carrying out the duty to consult and accommodate Aboriginal rights in administrative decisions over proposed resource development. Recent evidence suggests that integrating the duty to consult into National Energy Board (NEB) proceedings and subsuming the law of Aboriginal consultation under principles of administrative justice have not advanced the goal of reconciliation. This article considers whether the statutory mandate of the National Energy Board requires it to have sufficient regard to Aboriginal rights in a manner consistent with the adjudication of constitutional issues in administrative law. …


“The Lands…Belonged To Them, Once By The Indian Title, Twice For Having Defended Them…And Thrice For Having Built And Lived On Them”: The Law And Politics Of Métis Title, Karen Drake, Adam Gaudry Sep 2016

“The Lands…Belonged To Them, Once By The Indian Title, Twice For Having Defended Them…And Thrice For Having Built And Lived On Them”: The Law And Politics Of Métis Title, Karen Drake, Adam Gaudry

Osgoode Hall Law Journal

To predict what is on the horizon of the Métis legal landscape, we can look to jurisprudence on First Nations’ rights, given that Métis rights cases are typically ten to fifteen years behind those of First Nations. With the release of the Supreme Court of Canada’s decision in Tsilhqot’in, the next big issue in Métis law may be Métis title. Scholars have doubted the ability of Métis to establish Aboriginal title in Canada for two reasons: first, Métis were too mobile, and second, Métis were too immobile. This paper critically analyzes these positions and argues that the case for Métis …


Federal Treaty And Trust Obligations, And Ocean Acidification, Robert T. Anderson Jul 2016

Federal Treaty And Trust Obligations, And Ocean Acidification, Robert T. Anderson

Washington Journal of Environmental Law & Policy

Ocean acidification will have profound effects on the entire human population and natural resources that depend in any way upon Earth’s oceans and lakes. In turn, those effects will be even greater, and potentially catastrophic, for indigenous populations who rely on the seas for physical, cultural, and spiritual sustenance. While most research on carbon dioxide absorption from the atmosphere has focused on oceans and the resulting acidification, many believe that acidification levels also will also increase in the Great Lakes. Indian tribes in the Pacific Northwest and the Great Lakes regions share reliance on marine and freshwater resources, and many …


Emulsified Property, Jessica A. Shoemaker Jun 2016

Emulsified Property, Jessica A. Shoemaker

Pepperdine Law Review

The typical American Indian reservation is often described as a “checkerboard” of different real property ownership forms. Individual parcels of reservation land may be held in either a special federal Indian trust status or in fee, by either Indian or non-Indian owners. The general jurisdictional framework provides that federal and sometimes tribal law sets the rights and responsibilities of trust owners, while fee owners are subject to a peculiar mix of state and tribal law. Many scholars have analyzed the challenges created by this checkerboard pattern of property and jurisdiction. This Article, however, reveals an even more complicated issue that …


Looking To The Third Sovereign: Tribal Environmental Ethics As An Alternative Paradigm, Elizabeth Ann Kronk Warner Jun 2016

Looking To The Third Sovereign: Tribal Environmental Ethics As An Alternative Paradigm, Elizabeth Ann Kronk Warner

Pace Environmental Law Review

This article considers what role, if any, can tribal environmental ethics play in the re-examination and consideration of American environmental ethics? The answer—quite a substantial role. Tribes must straddle two worlds—a traditional one and one dominated by Western culture and values. As a result of this dichotomy, tribes are necessarily experts at adaptation and innovation. To demonstrate the value of looking to tribal environmental ethics when considering alternative ethical paradigms for the United States, this article begins by discussing the link between environmental ethics and policy making. With this understanding in place, the article then examines the importance of environmental …


Predicate Offenses, Foreign Convictions, And Trusting Tribal Courts, Alexander S. Birkhold Jun 2016

Predicate Offenses, Foreign Convictions, And Trusting Tribal Courts, Alexander S. Birkhold

Michigan Law Review Online

Concerns about the reliability of criminal justice systems in foreign countries have resulted in uneven treatment of foreign convictions in U.S. courts. Federal courts, however, have historically accepted tribal court convictions as predicate offenses under recidivist statutes. But the Ninth Circuit Court of Appeals recently rejected the uncounseled convictions obtained against Michael Bryant, Jr., a serial domestic abuser, in the Northern Cheyenne Tribal Court. The court dismissed a federal indictment that had been brought against Bryant under 18 U.S.C § 117, which makes it a felony to commit domestic violence against a spouse or partner in Indian country if the …


What Should Tribes Expect From Federal Regulations? The Bureau Of Land Management’S Fracking Rule And The Problems With Treating Indian And Federal Lands Identically, Monte Mills May 2016

What Should Tribes Expect From Federal Regulations? The Bureau Of Land Management’S Fracking Rule And The Problems With Treating Indian And Federal Lands Identically, Monte Mills

Public Land & Resources Law Review

The federal government’s various Indian policies create a number of boundaries across which Indian tribes must negotiate to ensure successful management of their natural resources. For example, the removal, reservation, and treaty-making period of the late 18th and early 19th Centuries created territorial boundaries that, for many tribes, did not align with their traditional homelands. Thereafter, allotment of many of the resulting tribal reservations decimated the tribal land base and left a checkerboard ownership pattern of land within many reservations. More recent decisions of the United States Supreme Court have limited tribal authority over the non-Indian owned squares on the …


Protecting Traditional Water Resources: Legal Options For Preserving Tribal Non-Consumptive Water Use, Julia Guarino May 2016

Protecting Traditional Water Resources: Legal Options For Preserving Tribal Non-Consumptive Water Use, Julia Guarino

Public Land & Resources Law Review

The law governing the quantification and use of tribal water rights is complex and inconsistent, creating major challenges for tribes working to gain control over and make use of their water resources. There are even greater challenges a tribe must overcome if it wishes to safeguard non- consumptive water uses not generally protected under Western water law regimes. Non-consumptive water uses include any use that does not require removing water from the natural water body. Such uses include protecting in-stream water flows for fisheries, riparian habitat, traditional plants, ceremonial uses, or recreation. There are legal tools available to tribes, however, …


“Salmon Is Culture, And Culture Is Salmon”: Reexamining The Implied Right To Habitat Protection As A Tool For Cultural And Ecological Preservation, Wesley J. Furlong May 2016

“Salmon Is Culture, And Culture Is Salmon”: Reexamining The Implied Right To Habitat Protection As A Tool For Cultural And Ecological Preservation, Wesley J. Furlong

Public Land & Resources Law Review

No abstract provided.


A Sacred Responsibility: Governing The Use Of Water And Related Resources In The International Columbia Basin Through The Prism Of Tribes And First Nations, Matthew J. Mckinney, Richard Kyle Paisley, Molly Smith Stenovec May 2016

A Sacred Responsibility: Governing The Use Of Water And Related Resources In The International Columbia Basin Through The Prism Of Tribes And First Nations, Matthew J. Mckinney, Richard Kyle Paisley, Molly Smith Stenovec

Public Land & Resources Law Review

In the fall of 2012, leaders from Columbia Basin First Nations and tribes participated, along with about 150 other people, in the 4th transboundary symposium convened by the Universities Consortium on Columbia River Governance. Gathered on the shores of Flathead Lake in Polson, Montana, the participants explored the interests, rights, roles, and responsibilities of indigenous people in the international Columbia River Basin. This symposium generated two notable outcomes: first, The Columbia River Basin: A Sense of the Future—a synthesis of interests and concerns with regard to the future of the transboundary river basin as captured by the Universities Consortium during …


Where There's Smoke, There's Fire: The State-Tribal Quandry Of Tribal Marijuana, Kyle Montour May 2016

Where There's Smoke, There's Fire: The State-Tribal Quandry Of Tribal Marijuana, Kyle Montour

American Indian Law Journal

No abstract provided.


Guide For Tribal Appeals By Pro Se Litigants And Lay Advocates, Gregory D. Smith May 2016

Guide For Tribal Appeals By Pro Se Litigants And Lay Advocates, Gregory D. Smith

American Indian Law Journal

No abstract provided.


Tribal Management Under The Mmpa: A Way Forward For Local Control, Julie Lurman Joly May 2016

Tribal Management Under The Mmpa: A Way Forward For Local Control, Julie Lurman Joly

American Indian Law Journal

No abstract provided.


Proposals For Resolving Reservation Residents' Bail Catch-22: A Case Study Of The St. Regis Mohawk Indian Reservation & The Town Of Bombay, New York, John C. Carroll May 2016

Proposals For Resolving Reservation Residents' Bail Catch-22: A Case Study Of The St. Regis Mohawk Indian Reservation & The Town Of Bombay, New York, John C. Carroll

American Indian Law Journal

No abstract provided.


The Plight Of New England Tribes Purusing Federal Recognition, Elizabeth Coronado May 2016

The Plight Of New England Tribes Purusing Federal Recognition, Elizabeth Coronado

American Indian Law Journal

No abstract provided.


Case Law On American Indians: August 2014-August 2015, Thomas P. Schlosser May 2016

Case Law On American Indians: August 2014-August 2015, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.


What Is Measured Is What Is Done: Methods To Measure Compliance With The Indian Child Welfare Act, Jason R. Williams Ph.D., James W. Amell Ph.D., Erin J. Maher Ph.D., Jill Tompkins J.D., Alicia Summers Ph.D., Jensina E. Rosen M.S.W., L.G.S.W., Shirley M. Cain J.D., Carolyn Mueller, Mallory Moon, George Mccauley, Linda Harris May 2016

What Is Measured Is What Is Done: Methods To Measure Compliance With The Indian Child Welfare Act, Jason R. Williams Ph.D., James W. Amell Ph.D., Erin J. Maher Ph.D., Jill Tompkins J.D., Alicia Summers Ph.D., Jensina E. Rosen M.S.W., L.G.S.W., Shirley M. Cain J.D., Carolyn Mueller, Mallory Moon, George Mccauley, Linda Harris

American Indian Law Journal

No abstract provided.


Killing The Policy To Save The Child: Comparing The Historical Removal Of Indigenous Children In Austrailia To The United States And How The Countries Can Learn From Each Other, Drew Pollom May 2016

Killing The Policy To Save The Child: Comparing The Historical Removal Of Indigenous Children In Austrailia To The United States And How The Countries Can Learn From Each Other, Drew Pollom

American Indian Law Journal

No abstract provided.


A Tiny Fish And A Big Problem: Natives, Elvers, And The Maine Indian Claims Settlement Act Of 1980, John Sanders May 2016

A Tiny Fish And A Big Problem: Natives, Elvers, And The Maine Indian Claims Settlement Act Of 1980, John Sanders

William & Mary Law Review

No abstract provided.


Abraham Lincoln And The Dakota War In Academic And Popular Literature, Larry D. Mansch Apr 2016

Abraham Lincoln And The Dakota War In Academic And Popular Literature, Larry D. Mansch

Madison Historical Review

While the Civil War all but consumed Abraham Lincoln’s presidency, at least one other military matter caught his attention. The 1862 Dakota War in Minnesota resulted in the deaths of 358 white settlers, 106 United States soldiers, and 29 Dakota warriors. When the fighting ended hundreds of Indians were placed in prisoner camps, and after sham trials nearly 400 warriors were sentenced to death. Military leaders, politicians, and an enraged citizenry demanded that Lincoln order swift executions. Seeking to balance a sense of justice against the public’s insistence for revenge, Lincoln examined the trial records of each of the defendants, …


In Her Words: Recognizing And Preventing Abusive Litigation Against Domestic Violence Survivors, David Ward Apr 2016

In Her Words: Recognizing And Preventing Abusive Litigation Against Domestic Violence Survivors, David Ward

Seattle Journal for Social Justice

No abstract provided.


Let’S Talk About Sex: A Call For Guardianship Reform In Washington State, Sage Graves Apr 2016

Let’S Talk About Sex: A Call For Guardianship Reform In Washington State, Sage Graves

Seattle Journal for Social Justice

No abstract provided.


Don’T Risk It; Wait Until She’S Sober, Patrick John White Apr 2016

Don’T Risk It; Wait Until She’S Sober, Patrick John White

Seattle Journal for Social Justice

No abstract provided.


Prostitution Policy: Legalization, Decriminalization And The Nordic Model, Ane Mathieson, Easton Branam, Anya Noble Apr 2016

Prostitution Policy: Legalization, Decriminalization And The Nordic Model, Ane Mathieson, Easton Branam, Anya Noble

Seattle Journal for Social Justice

No abstract provided.


His Feminist Facade: The Neoliberal Co-Option Of The Feminist Movement, Anjilee Dodge, Myani Gilbert Apr 2016

His Feminist Facade: The Neoliberal Co-Option Of The Feminist Movement, Anjilee Dodge, Myani Gilbert

Seattle Journal for Social Justice

No abstract provided.


Living Under The Boot: Militarization And Peaceful Protest, Charlotte Guerra Apr 2016

Living Under The Boot: Militarization And Peaceful Protest, Charlotte Guerra

Seattle Journal for Social Justice

No abstract provided.


Let’S Invest In People, Not Prisons: How Washington State Should Address Its Ex-Offender Unemployment Rate, Sara Taboada Apr 2016

Let’S Invest In People, Not Prisons: How Washington State Should Address Its Ex-Offender Unemployment Rate, Sara Taboada

Seattle Journal for Social Justice

No abstract provided.