Law Commons^™

The Negative Effects Of Confusion Over Collateral Agreements Under The Indian Gaming Regulatory Act: Which Agreements Need Review?, Matthew D. Craig

UNLV Gaming Law Journal

No abstract provided.

Congressional Power And Sovereignty In Indian Affairs, Michalyn Steele

Utah Law Review

The doctrine of inherent tribal sovereignty—that tribes retain aboriginal sovereign governing power over people and territory—is under perpetual assault. Despite two centuries of precedential foundation, the doctrine must be defended afresh with each attack. Opponents of the doctrine of tribal sovereignty express skepticism of the doctrine, suggesting that tribal sovereignty is a nullity because it is not unfettered. Some pay lip service to the doctrine while undermining tribes in their exercise of inherent sovereignty. Underlying many of these legal fights is confusion about both the nature of tribal sovereignty and the justifications for its continuing existence. Under current federal law, …

Navajo Nation V. Department Of The Interior, Jaclyn R. Van Natta

Public Land & Resources Law Review

In Navajo Nation v. Department of the Interior, the Navajo Nation challenged the Department of the Interior’s 2001 and 2008 water allocation guidelines and asserted that under NEPA and the APA the guidelines violated the Navajo Nation’s water rights. The Navajo Nation also asserted a breach of trust claim against the United States. After nearly a decade of attempted settlement negotiations, the Navajo Nation reasserted its complaints. The District Court for the District of Arizona denied the Navajo Nation’s motions, and the Navajo Nation appealed to the Ninth Circuit Court of Appeals, which determined the Navajo Nation lacked standing, …

The Heart Of K'É: Transforming Diné Special Education And Unsettling The Colonial Logics Of Disability, Sandra Yellowhorse

American Studies ETDs

This paper takes up the roles of ideology and spatiality as they impact Diné students and learners in understanding conceptions of normativity, neuro-diversity and bodily variance. I am concerned with how the movement and creation of Indigenous schools and their praxis still maintain and often times produce settler colonial ideologies of being, personhood, difference and ability. I illustrate the challenges that Diné planners and educators face in entrenching cultural knowledge and language into their educational initiatives, while some of the problematic manifestations and expressions of normativity present themselves through state polices, federal law and mainstream curriculum.

I focus on the …

Issue 1: Reimagining Overrepresentation Research: Critical Reflections On Researching The Overrepresentation Of First Nations Children In The Child Welfare System, Vandna Sinha, Ashleigh Delaye, Brittany Orav-Lakaski

Journal of Law and Social Policy

This paper builds on the experiences of the first author in doing research on the overrepresentation of First Nations children in child welfare systems in Canada. Six lessons are presented: (1) overrepresentation is an inherently quantitative construct; (2) overrepresentation is an inherently comparative construct; (3) a focus on overrepresentation draws attention to the needs of specific groups, but may obscure the need for broader systemic reform; (4) available data relies on, but incompletely represents, decision-maker perspectives; (5) available data emphasizes point-in-time decisions; and (6) ambiguity in data must be very clearly acknowledged. Building on discussion of these lessons, we explore …

Reply Brief For The Petitioner - Washington V. United States, Docket No. 17-269 (138 S.Ct. 735 (2018))

Washington v. United States, Docket No. 17-269 (138 S.Ct. 735 (2018))

No abstract provided.

Brief Amicus Curiae On Behalf Of Pacific Coast Federation Of Fishermen’S Associations, Alaska Trollers Association, Institute For Fisheries Resources, Fly Fishers International, Northwest Sportfishing Industry Association, Northwest Guides And Anglers Association - Washington V. United States, Docket No. 17-269 (138 S.Ct. 735 (2018)) Association Of Northwest Steelheaders, And The Conservation Angler In Support Of Respondents

Washington v. United States, Docket No. 17-269 (138 S.Ct. 735 (2018))

No abstract provided.

Native American Tribal Appellate Courts: Underestimated And Overlooked, Gregory D. Smith

The Journal of Appellate Practice and Process

No abstract provided.

Brief For Southwest Indian Law Clinic As Amici Curiae, United States V. Smith, Verónica C. Gonzales, Barbara L. Creel

Faculty Scholarship

Prior cases, have assumed, without analysis that the ACA applies to Indian Country. This review of the ACA failed to consider and incorporate clearly established Indian law principles and foundational tenets of criminal law in the analysis of its applicability to Indians and Indian Country. Most importantly, the precedent and the Court below failed to understand the racial component involved in the analysis. These failures to understand the principles of Indian law and criminal law, have rendered haphazard and incoherent decisions.

Amici seek to bring clarity to the complex jurisdictional interplay and provide a practical framework for the proper analysis …

Discussion Paper: Challenges And Successes Of Select Federal Initiatives In First Nation Reserve Communities, Including The Canada Labour Code, The Canadian Human Rights Act, And The National Building Code, Constance Macintosh

Reports & Public Policy Documents

This paper is to inform on-going discussions over proposed new federal accessibility legislation, and in particular discussions about whether such legislation should be extended to First Nation reserve communities. This paper is not a part of the consultation process that is being undertaken with various First Nations organizations. It surveys statutory law, reports, literature and jurisprudence. It discusses the legal landscape that must inform any dialogue about extending the federal regime to First Nation communities and assesses successes and challenges associated with three existing federal regimes that apply on First Nation Reserves.

Gmos, International Law And Indigenous Peoples, Casandia Bellevue

Pace International Law Review

This Article sprung from a desire to discover why—despite scientific uncertainty and the oft-cited precautionary principle in international law—genetically modified organisms are still allowed to spread via international trade and natural ecological cycles. While exploring this topic, it did not take long to come across the environmental justice impacts of genetically modified crops, and their particularly disparate impact upon indigenous peoples across the globe. Not only are GMOs threatening biodiversity and our planet, but also the very existence and cultural foundations of many indigenous groups.

This Article seeks to answer the following questions: What are the international agreements that can …

A Dollar For Your Thoughts: Dollar General And The Supreme Court's Struggle With Tribal Civil Jurisdiction, Hallie Mcdonald

Hofstra Law Review

No abstract provided.

Indigenous Water Justice, Barbara Cosens

Articles

Indigenous Peoples are struggling for water justice across the globe. These struggles stem from centuries-long, ongoing colonial legacies and hold profound significance for Indigenous Peoples’ socioeconomic development, cultural identity, and political autonomy and external relations within nation-states. Ultimately, Indigenous Peoples’ right to self- determination is implicated. Growing out of a symposium hosted by the University of Colorado Law School and the Native American Rights Fund in June 2016, this Article expounds the concept of “indigenous water justice” and advocates for its realization in three major trans- boundary river basins: the Colorado (U.S./Mexico), Columbia (Canada/U.S.), and Murray-Darling (Australia). The Article begins …

Judge Murphy's Indian Law Legacy, Kirsten Matoy Carlson

Law Faculty Research Publications

No abstract provided.

Indigenous Law In Central America: A Key To Improving Life And Justice, Julie A. Davies

McGeorge School of Law Scholarly Articles

Indigenous law provides accessible and expeditious dispute resolution in certain regions of Central and South America. Its focus is achieving solutions to a wide variety of problems through consultation and consensus in a manner that restores the harmony of the community. Sanctions, where applicable, seek to reintegrate and reorient the recipient to living a life that is consistent with the community’s values. The formal justice systems of the Northern Triangle countries—Guatemala, El Salvador, and Honduras—face major challenges in providing their people with access to justice. However, unlike countries with significant indigenous populations in South America, they have not recognized that …

Time Immemorial: Aboriginal Rights In The Valles Caldera, The Public Trust, And The Quest For Constitutional Sustainability, John W. Ragsdale Jr

Faculty Works

No abstract provided.

Resilience And Native Girls: A Critique, Addie C. Rolnick

Scholarly Works

The term resilience is often used with reference to Indigenous women and Indigenous youth. Native girls are included in each of these categories but are rarely the main focus of a campaign. Their triple vulnerability (gender, indigeneity, and age), however, means that the focus on resilience is often greatest when applied to them. This Article centers them. It traces the development of resilience in the (non-Native) ecological and psychological literature. Although resilience is used across many different disciplines, it is especially prominent in ecological literature about resilient institutions, such as communities and cities, and in psychological literature about resilient individuals. …

Standing Rock, The Sioux Treaties, And The Limits Of The Supremacy Clause, Carla F. Fredericks, Jesse D. Heibel

University of Colorado Law Review

No abstract provided.

Indigenous Rights To Water & Environmental Protection, Robert T. Anderson

Articles

This article examines the rights of Indian nations in the United States to adequate water supplies and environmental protection for their land and associated resources. Part I of this article provides a brief background on the history of federal-tribal relations and the source and scope of federal obligations to protect tribal resources. Part II reviews the source and nature of the federal government’s moral and legal obligations to Indian tribes, which are generally referred to as the trust responsibility. Indian reserved water rights and the difficulty tribes experience in protecting habitat needed for healthy treaty resources is discussed in Part …

Lobbying As A Strategy For Tribal Resilience, Kirsten Matoy Carlson

Law Faculty Research Publications

No abstract provided.

A Human Right To Self-Government Over First Nation Child And Family Services And Beyond: Implications Of The Caring Society Case, Naiomi Metallic

Articles, Book Chapters, & Popular Press

On January 26, 2016, the Canadian Human Rights Tribunal (the “Tribunal”) released a watershed decision in a complaint spearheaded by the First Nations Child and Family Caring Society of Canada, headed by Dr. Cindy Blackstock, and the Assembly of First Nations (the “Caring Society” decision). The complaint alleged that Canada, through its Department of Indigenous and Northern Affairs (“INAC” or the “Department”), discriminates against First Nations children and families in the provision of child welfare services on reserve. In its decision, the Tribunal found that INAC’s design, management and control of child welfare services on reserve, along with its funding …

The Broad Implications Of The First Nation Caring Society Decision: Dealing A Death-Blow To The Current System Of Program Delivery On-Reserve & Clearing The Path To Self-Government, Naiomi Metallic

Articles, Book Chapters, & Popular Press

On January 26, 2016, the Canadian Human Rights Tribunal (the “Tribunal”) released a watershed decision in a complaint spearheaded by the First Nations Child and Family Caring Society of Canada, its Executive Director, Dr. Cindy Blackstock, and the Assembly of First Nations (the “Caring Society” decision). The complaint alleged that Canada, through its Department of Indigenous and Northern Affairs (“INAC” or the “Department”), discriminates against First Nations children and families in the provision of child welfare services on reserve. In its decision, the Tribunal found that INAC’s design, management and control of child welfare services on reserve, along with its …

A Human Right To Self-Government Over First Nation Child And Family Services And Beyond: Implications Of The Caring Society Case, Naiomi Metallic

Articles, Book Chapters, & Popular Press

English Abstract

On January 26, 2016, the Canadian Human Rights Tribunal (the “Tribunal”) released a watershed decision in a complaint spearheaded by the First Nations Child and Family Caring Society of Canada, headed by Dr. Cindy Blackstock, and the Assembly of First Nations (the “Caring Society” decision). The complaint alleged that Canada, through its Department of Indigenous and Northern Affairs (“INAC” or the “Department”), discriminates against First Nations children and families in the provision of child welfare services on reserve. In its decision, the Tribunal found that INAC’s design, management and control of child welfare services on reserve, along with …

The Source, Nature, And Content Of The Crown’S Underlying Title To Aboriginal Title Lands, Kent Mcneil

Articles & Book Chapters

The highest courts in Australia, Canada, and New Zealand have consistently held that the Crown has the underlying title to Aboriginal title lands. The United States Supreme Court has likewise concluded that either the federal or state governments have the underlying title to Indian lands. However, the source, nature, and content of this title remain obscure. This article will examine the relevant case law and contend that, in Canada, the Crown’s underlying title is a purely proprietary interest that does not amount to a current beneficial interest and does not entail any jurisdictional authority. It is sourced in the doctrine …

Towards An Anishinabe Research Paradigm: Theory And Practice., Deborah Mcgregor

Articles & Book Chapters

As this volume attests to, in recent years there has been a remarkable emergence of Indigenous research scholarship both internationally and within Canada. Indigenous theory, paradigms, and methods inform research practices which take on many forms, reflecting the diversity of Indigenous nations. Many scholars, Indigenous and non-Indigenous alike, have sought to decolonize past and current research approaches and advance Indigenous approaches and methods of research (Louis, 2007). Some more recent efforts have focused specifically on the revitalization of Indigenous research traditions (Archibald, 2008; Kovach, 2003; Wilson, 2008). Anishinaabe research is a form of reclaiming our stories and knowledge through personal …

Don't Chase Your Losses: Online Gambling Regulation And Solutions In Minnesota, Samuel E. Mogensen

Mitchell Hamline Law Review

No abstract provided.

Chapter 8: Indigenous Belonging: Membership And Identity In The Undrip: Articles 9, 33, 35, And 36, Shin Imai, Kathryn Gunn

Articles & Book Chapters

The recognition of Indigenous peoples' right to determine their own membership is crucial for their ability to meaningfully exercise their right to self-determination. The Declaration addresses rights of membership directly in Article 9 (right to belong), 33 (right to determine membership), 35 (right to determine responsibilities of members), and 36 (right to maintain relations across borders). Together, these provisions reinforce the right of Indigenous peoples to define themselves, both in terms of membership and geographic scope.

Epilogue: Indigenous Research: Future Directions, Deborah Mcgregor

Articles & Book Chapters

Indigenous research is often viewed as a novel and recently conceived research paradigm with the aim of explicitly and actively supporting the self-determination goals of Indigenous peoples (National Aboriginal Health Organization [NAHO], 2005). While it may be “new” to academia, engaging in Indigenous inquiry, along with its resultant knowledge production and mobilization, is actually far from new. Indigenous societies, like any autonomous and sovereign nations, required regularly updated knowledge to meet existing and emerging challenges. Indigenous peoples have thus been seeking knowledge to support their existence as peoples and nations for millennia (Absolon & Willet, 2004; Cardinal, 2001; Castellano, 2000; …

Originalism And Indians, M. Alexander Pearl

Faculty Articles

Indian tribes, in the context of US. constitutional theory, do not fit. They are an anomaly in American governmental structure. Tribal governments exist today within the constitutional framework of the United States only by virtue of acrobatic displays of rhetorical legal reasoning and mythologized interpretations of history. Originalist theory can provide a clear exit from the inconsistencies and inaccuracies underlying the foundation of federal Indian law. Typically, scholars embracing an originalist position are thought of as conservative. A conservative position is typically associated with opposition to tribal sovereignty. In contrast to those traditional views, I argue that an originalist view …

Human Rights, Indigenous Peoples, And The Global Climate Crisis, M. Alexander Pearl

Faculty Articles

The global climate crisis is an ongoing event the likes of which we have yet to experience. The science is clear, the phenomenon is traceable, and the effects are far-reaching. But, the consequences of the climate crisis affect particular populations more so than others, and often times the affected populations are voiceless. Among those most impacted are indigenous peoples. Indigenous peoples stand in a unique place in the context of climate change. In general, indigenous peoples have a comprehensive relationship with their place and surroundings, which incorporates culture, livelihood, economy, and a defining sense of self. Land and resources are …