Law Commons^™

Board Of Editors

Public Land & Resources Law Review

No abstract provided.

Table Of Contents

Public Land & Resources Law Review

No abstract provided.

Letter To The Reader

Public Land & Resources Law Review

No abstract provided.

The Interaction Of U.S. Public Lands, Water, And State Sovereignty In The West: A Reassessment And Celebration, John D. Leshy

Public Land & Resources Law Review

No abstract provided.

Constitutional Protections Of Property Interests In Western Water, James L. Huffman, Hertha L. Lund, Christopher T. Scoones

Public Land & Resources Law Review

No abstract provided.

The Good, The Bad, And The Unnecessary : Forest Fire Suppression Funding And Forest Management Provisions Of The Consolidated Appropriations Act Of 2018, Peter B. Taylor

Public Land & Resources Law Review

No abstract provided.

Massachusetts Lobstermen’S Association V. Ross, Daniel Brister

Public Land & Resources Law Review

President Obama established the first––and only––national monument in the Atlantic Ocean on September 15, 2016. Located 130 miles southeast of Cape Cod, Massachusetts, and comprised of 4,913 square miles of marine ecosystems rich in biodiversity, the protected area includes four underwater mountains and three submarine canyons. Plaintiff commercial lobster and fishing associations, seeking to overturn the designation, asserted that the Antiquities Act does not permit a president to establish marine national monuments. The U.S. District Court for the District of Columbia disagreed, upholding a president’s authority to protect offshore areas and vast ecosystems as objects of scientific interest, and dismissing …

The Promise And Pitfalls Of C-92: An Act Respecting First Nations, Inuit, And Métis Children, Youth And Families, Naiomi Metallic, Hadley Friedland, Sarah Morales

Reports & Public Policy Documents

On June 21, 2019, Bill C-92 An Act Respecting First Nations, Inuit and Métis Children, Youth and Families became law. The Bill is a huge and unprecedented step forward in Canada. It is the first time the federal government has exercised its jurisdiction to legislate in the area of Indigenous child welfare.

In this article, we identify both the improvements in Bill C-92 since our last report as well as key problems that remain in the five following areas: 1) National Standards 2) Jurisdiction 3) Funding 4) Accountability 5) Data Collection We also suggest strategies to assist Indigenous communities in …

"Enough's Enough": Protest Law And The Tradition Of Chilling Indigenous Free Speech, Alix H. Bruce

Celebrating WCL Student Authors

Indigenous peoples in the United States were not granted the full scope of their rights as citizens under the Constitution until the enactment of the Indian Citizenship Act of 1924. Before that—and after—several state and federal campaigns worked to stifle the civil rights of Indigenous peoples. Many of those unjust and unconstitutional policies were upheld by the Supreme Court. In the current era, the anti-pipeline protests on the edge of the Standing Rock Sioux Reservation in North Dakota sparked a new recognition of Indigenous resistance under the First Amendment—and vicious state and federal backlash against Indigenous free speech via the …

Beyond Vawa: Protecting Native Women From Sexual Violence Within Existing Tribal Jurisdictional Structures, Jessica Allison

University of Colorado Law Review

One in three American Indian women will be raped in her lifetime. This rampant assault is only exacerbated by the fact that tribes have not been able to prosecute non- Indians for any crime, including rape, since the 1970s. The Violence Against Women Reauthorization Act of 2013 took a small step toward filling this jurisdictional hole by creating provisions under which tribes can prosecute certain non- Indian defendants for a limited set of sexual violence crimes. However, VAWA is not enough to protect Indian women from the astronomical rates of violence they experience. This Comment explores mechanisms used by tribes …

The Causal Effect: Implications Of Chronic Underfunding In School Systems On The Navajo Reservation, Adriana M. Orman

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Envisioning Indigenous Community Courts To Realize Justice In Canada For First Nations, Angelique Eaglewoman

Faculty Scholarship

Through European colonization in North America, the time-honored rule of law, or good way of life, in Indigenous communities was displaced with external forums and processes, primarily from the British juridical traditions. In contemporary Canada, the use of external laws as a tool of colonization and the injustice experienced by Aboriginal peoples in Canadian courts has been the focus of media attention, policy papers, and legal reports for decades. The Canadian justice system is viewed by many as external and a means of subjugation for First Nation, Métis and Inuit peoples. As the Canadian government has attempted to come to …

Traditional Ecological Knowledge In Environmental Decisionmaking, Anthony Moffa

Faculty Publications

Traditional ecological knowledge (TEK) is defined as a deep understanding of the environment developed by local communities and indigenous peoples over generations. In the United States, Canada, and around the world, indigenous peoples are increasingly advocating for incorporation of TEK into a range of environmental decisionmaking contexts, including natural resource and wildlife management, pollution standards, environmental and social planning, environmental impact assessment, and adaptation to climate change. On October 31, 2018, ELI hosted an expert panel on TEK, co-sponsored by the National Native American Bar Association and the American Bar Association Section of Environment, Energy, and Resources. The panel discussed …

Social Work As An Important Collaborator In Transdisciplinary Public Health Law: Why Does It Matter And Where Does It Fit?, Heather A. Walter-Mccabe

Law Faculty Research Publications

No abstract provided.

Proceedings Of Expert Forum On First Nations Social Assistance Reform, September 3, 2019, Naiomi Metallic, Fred Wien

Articles, Book Chapters, & Popular Press

Social assistance, whether directed to the mainstream population or to First Nations, is not – according to Forum participants -- a sexy topic. Specifically, with respect to First Nation persons living on reserve in Canada, it has been largely a neglected field except for those directly responsible for administering it. Despite its substantive importance, it has not received a lot of attention from the academic research community, for example, nor is it usually near the top of the list of priorities for political leaders and governments.

Why is this the case? Perhaps it has to do with the history of …

Call For Inputs: Climate Change And Human Rights: A Safe Climate, Sara L. Seck, Lisa Benjamin

Articles, Book Chapters, & Popular Press

There is now global agreement that human rights norms apply to the full spectrum of environmental issues, including climate change. The previous Special Rapporteur on human rights and the environment, Mr. John Knox, developed Framework Principles on Human Rights and the Environment that set forth three sets of duties that engage both States and businesses: procedural obligations; substantive obligations; and obligations relating to those in vulnerable situations.

The current Special Rapporteur on human rights and the environment, Mr. David Boyd, is working to provide additional clarity regarding the substantive obligations relating to a range of elements that are essential to …

Ending Piecemeal Recognition Of Indigenous Nationhood And Jurisdiction: Returning To Rcap’S Aboriginal Nation Recognition And Government Act, Naiomi Metallic

Articles, Book Chapters, & Popular Press

Most Indigenous groups in Canada are not self-governing. While the last two decades have seen an increase in laws and policies that provide some Indigenous groups greater control over their territories and citizens, overall these have been ineffective in achieving transformative change. What has transpired in Canada over the last twenty years can be characterized as ‘piecemeal recognition’—discrete recognition of Indigenous control here and there in a case, policy or statute—and implemented in a patchwork fashion. In 1996 the Royal Commission on Aboriginal Peoples report advanced a very reasonable proposal for national legislation recognizing the right of Indigenous peoples to …

Celebrating 30 Years Of The Indigenous Blacks & Mi’Kmaq Initiative: How The Creation Of A Critical Mass Of Black And Aboriginal Lawyers Is Making A Difference In Nova Scotia, Naiomi Metallic

Articles, Book Chapters, & Popular Press

Drawing on my own experience as alumni of the Indigenous Blacks & Mi’kmaq Initiative at the Schulich School of Law at Dalhousie University—one of the only dedicated access program in a Canadian law school for Black and Aboriginal students—I argue that such programs create optimal conditions for fostering greater awareness of critical race issues within the legal profession. The reason for this is that such programs create a critical mass of Black and Aboriginal law students and alumni, who support and encourage each other and, as a result, acquire confidence and skill in raising, and educating others about, critical race …

The Intersection Of Indigenous Public Health With Law And Policy In Canada, Constance Macintosh

Articles, Book Chapters, & Popular Press

This chapter presents an overview of the law, policy and governance practices that are most directly implicated in the population health of Indigenous people who reside in Canada. The first section provides a general description of the socio-legal categories that are drawn upon in health policy, programming and legislation regarding Indigenous peoples. It briefly describes roles in funding and delivering community health services and programming, as well as disputes about responsibilities and some shortcomings.

The second section provides an overview of the population health status of Indigenous peoples. Epidemiological data is presented, and select social determinants of health are also …

If There Can Only Be ‘One Law’, It Must Be Treaty Law. Learning From Kanawayandan D’Aaki, Dayna Nadine Scott, Andrée Boisselle

Articles & Book Chapters

The paper stems from a research collaboration with the Anishini community of Kitchenuhmaykoosib Inninuwug (KI), known as the people of Big Trout Lake in the far north of Ontario. In the face of renewed threats of encroachment by extractive industries onto their homelands, our research team visited the community on the invitation of leadership in 2017. The community was engaged in strategic planning and reflection on the work that they have done in recent years to articulate and record their own laws for the territory, and to gain recognition for those laws from settler governments. Between 2008 and 2018, …

Supreme Court Of Canada Cases Strengthen Argument For Municipal Obligation To Discharge Duty To Consult: Time To Put Neskonlith To Rest, Angela D’Elia Decembrini, Shin Imai

Articles & Book Chapters

Can municipalities infringe Aboriginal or treaty rights without consulting the affected Indigenous group? In Neskonlith Indian Band v. Salmon Arm (City), the British Columbia Court of Appeal answered this question in the affirmative, finding that the city of Salmon Arm did not need to consult the Neskonlith First Nation about impacts from the construction of a shopping mall. In what was technically obiter dicta, the Court permitted the municipal project to proceed, and told the First Nation that its only recourse was to complain to the provincial government in a separate proceeding.

Truth Be Told: Redefining Relationships Through Indigenous Research, Deborah Mcgregor

Articles & Book Chapters

The recently released report of the Truth and Reconciliation Commission of Canada (TRC) contains recommendations which seek to deconstruct the highly colonial relationship between Indigenous peoples and the Canadian state. This chapter explores how the TRC’s findings might be applied in transforming the theory and practice of academic research as part of renewing and re-defining relationships between Indigenous peoples and broader Canadian society. I will address the fundamental bias that exists in the historical and contemporary scholarship that either explicitly or implicitly frames Indigenous peoples as “problems” to be solved.

The History And Promise Of Shared Space In A Section 35 World, Signa A. Daum Shanks

Articles & Book Chapters

When non-Indigenous people made their way to North America, both conflicting and complementary social norms existed between explorers and the land’s original inhabitants. Capable of agreeing with, often challenging, and regularly borrowing each other’s ideas, people of early post-contact times demonstrated how they could have different values and processes but could still cooperate. So while colonialism certainly stifled, if not terminated, some Indigenous processes, local concepts still often prevailed and governed all those who inhabited a space—including the non-Indigenous. Canada’s post-contact past is as much about the adherence to Indigenous jurisdiction as it is about an external force’s interpretation of …

Book Review: John Borrows, Law's Indigenous Ethics, Karen Drake

Articles & Book Chapters

No abstract provided.

The Louisiana Purchase: Indian And American Sovereignty In The Missouri Watershed, Kent Mcneil

Articles & Book Chapters

Like a historical mantra repeated time and again, it is asserted that the Louisiana Purchase doubled the size of the United States. As this assertion takes for granted that the Purchase included the entire Missouri watershed, it rests on the assumption that France had a valid title thereto because, as a matter of common sense and international law, France could only convey title to territory that it actually owned. But what basis is there for the assumption that France had sovereign title to the vast territory drained by the Missouri River that stretches from the Mississippi River to the Rocky …

Sports Betting And Indian Gaming: Should Tribal Casinos Get In The Game?, Kathryn R. L. Rand, Steven Andrew Light

Law Faculty Publications

No abstract provided.

Isleta Pueblo Tribal Court Handbook (2019), Tribal Law Journal Staff

Tribal Law Journal

This handbook helps take some of the mystery out of practicing in tribal courts. Without the necessary information to learn new rules and protocols many attorneys are understandably reluctant to practice in a new jurisdiction. As a result, tribal courts are underused or misused. This handbook is intended to help attorneys and advocates become more aware of the various individual tribal court systems and to learn their rules and protocol.

Laguna Pueblo Tribal Court Handbook (2019), Tribal Law Journal Staff

Tribal Law Journal

This handbook helps take some of the mystery out of practicing in tribal courts. Without the necessary information to learn new rules and protocols many attorneys are understandably reluctant to practice in a new jurisdiction. As a result, tribal courts are underused or misused. This handbook is intended to help attorneys and advocates become more aware of the various individual tribal court systems and to learn their rules and protocol.

Mescalero Apache Tribal Court Handbook (2019), Tribal Law Journal Staff

Tribal Law Journal

This handbook helps take some of the mystery out of practicing in tribal courts. Without the necessary information to learn new rules and protocols many attorneys are understandably reluctant to practice in a new jurisdiction. As a result, tribal courts are underused or misused. This handbook is intended to help attorneys and advocates become more aware of the various individual tribal court systems and to learn their rules and protocol.

Navajo Nation Tribal Court Handbook (2019), Tribal Law Journal Staff

Tribal Law Journal

This handbook helps take some of the mystery out of practicing in tribal courts. Without the necessary information to learn new rules and protocols many attorneys are understandably reluctant to practice in a new jurisdiction. As a result, tribal courts are underused or misused. This handbook is intended to help attorneys and advocates become more aware of the various individual tribal court systems and to learn their rules and protocol.