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Brief For American Indian Law Scholars As Amicus Curiae, Stephen C., Et Al V. Bureau Of Indian Education, Et Al.,, Barbara L. Creel, Tierra N. Marks, Randolph H. Barnhouse Jul 2021

Brief For American Indian Law Scholars As Amicus Curiae, Stephen C., Et Al V. Bureau Of Indian Education, Et Al.,, Barbara L. Creel, Tierra N. Marks, Randolph H. Barnhouse

Faculty Scholarship

Indian Civil Rights/Education Lawsuit

View this and other court documents at Turtle Talk.

Congress’s declared federal policy is “to fulfill the Federal Government’s unique and continuing trust relationship with and responsibility to the Indian people for the education of Indian children.” 25 U.S.C. § 2000. This federal policy is the touchstone of the federal government’s trust obligation to Indian families and their children. When the BIA (through the BIE) fails to protect the rights of Indian children to “educational opportunities that equal or exceed those for all other students in the United States,” courts have ...


Civil Procedure Update 2021 (Handout And Slide Deck), Verónica Gonzales-Zamora, Julio C. Romero Apr 2021

Civil Procedure Update 2021 (Handout And Slide Deck), Verónica Gonzales-Zamora, Julio C. Romero

Faculty Scholarship

This presentation aims to 1) review recent amendments to the state and federal rules of civil procedure; 2) help you understand the impact of recent federal and state published opinions interpreting and applying the rules of civil procedure; and 3) assess your understanding of the updates.


When Imitation Is Not Flattery: Addressing Cultural Exploitation In Guatemala Through A Sui Generis Model, Paul Figueroa Apr 2021

When Imitation Is Not Flattery: Addressing Cultural Exploitation In Guatemala Through A Sui Generis Model, Paul Figueroa

Faculty Scholarship

Indigenous Guatemalan weavers are fighting for intellectual property laws that better protect their designs and other cultural expressions. The exploitation and appropriation by local and international companies has negatively affected the weavers’ livelihoods and resulted in culturally inappropriate uses of spiritual and traditional symbols. Adhering to Western ideals of individual creativity and utility, intellectual property laws in most of the world (including Guatemala) are not suited to protect indigenous creations. To address this legal gap, some countries have adopted sui generis legal regimes that align with communal notions of creation, ownership and stewardship found in indigenous knowledge systems. Based on ...


Civil Procedure Update 2020: New Mexico Annual Judicial Conclave, Verónica C. Gonzales-Zamora, George Bach Jun 2020

Civil Procedure Update 2020: New Mexico Annual Judicial Conclave, Verónica C. Gonzales-Zamora, George Bach

Faculty Scholarship

These materials are part of a presentation on civil procedure given to magistrate, district, appellate, and tribal court judges, justices, and staff attorneys in New Mexico courts. These materials include the language of approved and proposed amendments to the state and federal rules of civil procedure as well as summaries of relevant appellate cases issued by the New Mexico Supreme Court and Court of Appeals, the Supreme Court of the United States, and the Supreme Court of the Navajo Nation between May 1, 2019 to May 1, 2020.

  • Amendments to the New Mexico Rules of Civil Procedure include NMRA Rule ...


The Indigenous Decade In Review, Christine Zuni Cruz Jan 2020

The Indigenous Decade In Review, Christine Zuni Cruz

Faculty Scholarship

This Article considers the decade, 2010 to 2019, in respect to indigenous peoples in the United States. The degree of invisibility of indigenous peoples, in spite of the existence of 574 federally recognized tribes with political status, is a central issue in major cases and events of the decade. Land and environment, social concerns, and collective identity are the three areas through which this Article considers the decade. The Declaration on the Rights of Indigenous Peoples, endorsed in 2010, sets a measure for the nation-state’s engagement with indigenous peoples possessed of self-determination. The criticality of a new place in ...


Red River, White Law, Laura Spitz Jun 2019

Red River, White Law, Laura Spitz

Faculty Scholarship

No matter how well-intended, advocates reaching for personhood on behalf of rivers in the United States must think carefully about how to meaningfully engage the Indigenous peoples directly affected, or risk continuing practices of colonization. In that sense, the Colorado River case was a missed opportunity to contextualize the claim in terms of local Indigenous laws and cultures. Its dismissal provides an opportunity to reset and reach out before moving forward again.


Federal Indian Law, Verónica C. Gonzales-Zamora May 2018

Federal Indian Law, Verónica C. Gonzales-Zamora

Faculty Scholarship

Introduction to Federal Indian Law, broken down by years: 1492, 1787, 1828, 1887, 1934, 1953, 1968 to the present. Includes major cases and additional resources.


Brief For Southwest Indian Law Clinic As Amici Curiae, United States V. Smith, Verónica C. Gonzales-Zamora, Barbara L. Creel Mar 2018

Brief For Southwest Indian Law Clinic As Amici Curiae, United States V. Smith, Verónica C. Gonzales-Zamora, 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 ...


Human "Being", Laura Spitz Jan 2018

Human "Being", Laura Spitz

Faculty Scholarship

In this summary, Professor Spitz discusses how the Douglas Treaties acknowledged Aboriginal title when negotiations with Indigenous populations when purchasing land. She looks at how what the definition of “human being” is during the 18th century and how Douglas’ respect of Aboriginal land title also indicated he was these people as people. This diverges from categorizations surrounding the term Indian, and its implication that populations were subhuman and/or a different species.

Douglas is still embedded in a larger social and legal structure even as he understands indigenous populations as human when it comes to resources and allocations. Where the ...


Community Engagement And Social Activism In Legal, Aliza Organick Dec 2017

Community Engagement And Social Activism In Legal, Aliza Organick

Faculty Scholarship

Organick encourages new law faculty to reach out to the clinicians on your faculty for support, potential collaborative projects. This benefits students, and lays the foundation for meaningful friendships.


Courts Also Won (Albuquerque) Mayoral Election, Kevin Washburn Nov 2017

Courts Also Won (Albuquerque) Mayoral Election, Kevin Washburn

Faculty Scholarship

In the 2017 Albuquerque mayoral election, one of the candidates sought to make the election a referendum on the New Mexico judiciary and was soundly defeated. In this respect, in addition to candidate and now Mayor-elect Time Keller, the courts also won the election.


Brief For The Council Of University Presidents On Legislative Council V Martinez As Amicus Curiae, No. S-1-Sc-36422, Kevin Washburn May 2017

Brief For The Council Of University Presidents On Legislative Council V Martinez As Amicus Curiae, No. S-1-Sc-36422, Kevin Washburn

Faculty Scholarship

On April 7, 2017, the Governor exercised an extraordinary line-item veto of portions of the Fiscal Year 2018 appropriation bill eliminating all funding for the Legislature and for higher education in New Mexico. Governor's House Executive Message No. 56 (April 7, 2017), Petitioner's Exhibit D, at 3-7. Amici have a fiduciary responsibility to their institutions to advocate for a resolution quickly to mitigate the many harms caused by this budget crisis. CUP takes no position on the outcome of this action, but Amici do request that this case be decided expeditiously so that other constitutional actors do not ...


What The Future Holds: The Changing Landscape Of Federal Indian Policy, Kevin Washburn Apr 2017

What The Future Holds: The Changing Landscape Of Federal Indian Policy, Kevin Washburn

Faculty Scholarship

Since first described by Chief Justice John Marshall, the United States has been deemed to have a moral and legal “trust responsibility” to the American Indian tribal nations that gave way so that the United States could exist. For nearly two centuries, the trust responsibility reflected a paternalistic view toward Indian tribes. As the United States has developed a more enlightened policy characterized by greater respect for “tribal self-governance,” tribal governments have experienced a renaissance. Federal policy has moved away from federal control and toward tribal empowerment. As a result, the trust responsibility’s paternalistic features have come to seem ...


Comment Re Rule 10 Of The Minnesota General Rules Of Practice For The District Courts, Kevin Washburn Mar 2017

Comment Re Rule 10 Of The Minnesota General Rules Of Practice For The District Courts, Kevin Washburn

Faculty Scholarship

No abstract provided.


Pueblo Indian Water Rights: Charting The Unknown, Richard W. Hughes Jan 2017

Pueblo Indian Water Rights: Charting The Unknown, Richard W. Hughes

Publications

This article examines the so-far-unsuccessful efforts to judicially define and quantify the water rights appurtenant to the core land holdings of the 19 New Mexico Pueblos, many of whose lands straddle the Rio Grande. It explains that the Tenth Circuit Court of Appeals has squarely held that Pueblo water rights are governed by federal, not state law, and are prior to those of any non-Indian appropriator, but also that the Tenth Circuit acknowledged that it could not say how those rights should be characterized. Part I of the article examines the course of the cases that have sought to achieve ...


Explaining The Modernized Leasing And Right-Of-Way Regulations For Indian Lands, Kevin Washburn, Jody Cummings Jan 2017

Explaining The Modernized Leasing And Right-Of-Way Regulations For Indian Lands, Kevin Washburn, Jody Cummings

Faculty Scholarship

The Obama Administration enacted significant reforms to the regulatory rules governing federal leasing and right of way approvals across tribal lands in Parts 162 and 169 of the Indian title of the federal regulations. These reforms had many aims. They sought to improve the environment for economic development on Indian reservations by speeding regulatory approvals, increasing predictability (by, in part, narrowing agency discretion), and increasing deference to tribal governmental decisions. The reforms sought to help tribal governments capture economic value that had previously been denied them, for example, by preventing so called "piggybacking" on pre-existing rights of way and clarifying ...


Blackfeet Water Rights Settlement Act Of 2016, United States 114th Congress Dec 2016

Blackfeet Water Rights Settlement Act Of 2016, United States 114th Congress

Native American Water Rights Settlement Project

Federal Legislation: Blackfeet Water Rights Settlement Act of 2016, in Water Infrastructure Improvements for the Nation Act, Title III, Subtitle G. PL 114-322, ** Stat. *** (Dec. 16, 2016). This Act authorizes, ratifies, and confirms the water rights compact between the Blackfeet Nation and Montana dated April 15, 2009, as modified to be consistent with this subtitle. The Act relates to the Blackfeet Nation’s water rights in the Milk River, Milk River Project, St. Mary River, instream flow rights, and rights in Lake Elwell and any water rights arising out of MT state law. The legislation authorized $422 million in funding ...


Choctaw Nation Of Oklahoma And The Chickasaw Nation Water Settlement, United States 114th Congress Dec 2016

Choctaw Nation Of Oklahoma And The Chickasaw Nation Water Settlement, United States 114th Congress

Native American Water Rights Settlement Project

Federal Legislation; Parties: Choctaw Nation of Oklahoma, Chickasaw Nation, City of Oklahoma City, Oklahoma, United States. Purposes, pp 169-170; Definitions, pp. 170-2; Approval of Settlement Agreement, pp. 172-3; Approval of Amended Storage Contract & 1974 Storage Contract, pp.173-5; Settlement Area Waters, pp. 175-7; City Permit for Appropriation of Surface Water from the Kiamichi River, p. 177; Settlement Commission, pp. 177-8; Waivers and Releases of Claims, pp. 178-183; Enforceability Date, pp. 183-5; Jurisdiction, Waivers of Immunity for Interpretation and Enforcement, pp. 185-6; Disclaimers, pp. 186-7. [Source: Government Printing Office http://www.gpo.gov]


High Court Denies Rights Of Natives, Barbara L. Creel, John Lavelle Jun 2016

High Court Denies Rights Of Natives, Barbara L. Creel, John Lavelle

Faculty Scholarship

June 13 of this year marked a milestone in constitutional law. Fifty years earlier, in 1966, the Supreme Court decided Miranda v. Arizona, requiring officers to notify individuals in police custody of their “Miranda rights,” including their right to a court-appointed lawyer if unable to afford one.

In United States v. Bryant, this nation’s highest court condoned the use of prior “uncounseled” tribal court convictions to charge and convict an Indian as a federal habitual domestic violence offender.

Justice Ruth Bader Ginsburg, who wrote Bryant, denigrates Indian people’s civil rights, citing the need to protect Native women from ...


Time To Empower Tribal Authorities, Kevin Washburn May 2016

Time To Empower Tribal Authorities, Kevin Washburn

Faculty Scholarship

No abstract provided.


Modrall Sperling Interviews Kevin Washburn About Indian Law And Returning To New Mexico, Kevin Washburn Apr 2016

Modrall Sperling Interviews Kevin Washburn About Indian Law And Returning To New Mexico, Kevin Washburn

Faculty Scholarship

Reflections on Service as Assistant Secretary-Indian Affairs, the State of Indian Law in 2016, and Returning Home to New Mexico


Montana Standard Interviews Barbara Creel On The Violence Against Women Act And Double Standards, Barbara L. Creel Apr 2016

Montana Standard Interviews Barbara Creel On The Violence Against Women Act And Double Standards, Barbara L. Creel

Faculty Scholarship

Barbara Creel, Southwest Indian Law Clinic Director Professor at the University of New Mexico, agreed with Babcock that the case was not about tribal sovereignty.

Yet she said the case reveals inequities in the criminal justice system of tribes created when Congress told them how to structure their governments under the Indian Reorganization Act but did not provide sufficient funding or additional legal protections to make those systems function as intended.

Additionally, in a brief she and colleagues filed to the court, Creel argues that the Violence Against Women Act creates a discriminatory double standard.


Supreme Court Brief Interviews Creel, Barbara L. Creel Apr 2016

Supreme Court Brief Interviews Creel, Barbara L. Creel

Faculty Scholarship

If tribal courts provided competent counsel to indigent Indian defendants, Creel said, "Then I would say, 'Prosecute all day long.' But [federal prosecutors] are trying to short-circuit that. They're saying because we have this epidemic, let's make it easier for everyone involved. That's against constitutional values and tribal values."

Creel asks the justices to hold that all persons facing incarceration must have the same protections in place. "That wouldn't apply the Constitution to tribes but it would disallow federal prosecutors from using uncounseled convictions."


Partial Final Judgment And Decree Of The Water Rights Of The Pueblos Of Nambé, Pojoaque, San Ildefonso, And Tesuque, Usdc, Dcnm Mar 2016

Partial Final Judgment And Decree Of The Water Rights Of The Pueblos Of Nambé, Pojoaque, San Ildefonso, And Tesuque, Usdc, Dcnm

Native American Water Rights Settlement Project

Court Decree: Partial Final Judgment and Decree of the Water Rights of the Pueblos of Nambé, Pojoaque, San Ildefonso, and Tesuque

Parties: Pueblos of Nambé, Pojoaque, San Ildefonso, Tesuque.

Contents: Approval of Settlement Agreement p. 2; Acquired Water Rights p. 3; Nambé Water Rights p. 3; Pojoaque Water Rights p. 5; Tesuque Water Rights p. 7; San Ildefonso Water Rights p.9; Limitations p. 11; Enforcement, Administration, Held in Trust p. 12.

Attachments: Attachment 1, p. 13: Nambé irrigation uses, domestic, community, commercial and industrial uses, livestock uses; Attachment 2, p. 25: Pojoaque irrigation uses, domestic, community, commercial and industrial ...


Brief For Barbara L. Creel And The Tribal Defender Network, Us V. Bryant, Barbara L. Creel, John Lavelle Mar 2016

Brief For Barbara L. Creel And The Tribal Defender Network, Us V. Bryant, Barbara L. Creel, John Lavelle

Faculty Scholarship

Although Congress intended to protect women in Indian Country from domestic abuse, they condoned the use of prior “uncounseled” tribal court convictions to charge and convict an Indian as a federal habitual domestic violence offender.

Justice Ruth Bader Ginsburg, who wrote Bryant, denigrates Indian people’s civil rights, citing the need to protect Native women from domestic violence. But Department of Justice statistics show most domestic violence perpetrators in Indian country are non-Indians, and the Bryant decision leaves intact their constitutional rights, including the right to appointed counsel.


U.S. Restores Millions Of Acres To Native Americans, Kevin Washburn Mar 2016

U.S. Restores Millions Of Acres To Native Americans, Kevin Washburn

Faculty Scholarship

The Obama Administration has restored nearly 2 million acres to tribal ownership in a variety of different ways.


Partial Final Judgment And Decree On The Water Rights Of Taos Pueblo, Usdc, Dcnm Feb 2016

Partial Final Judgment And Decree On The Water Rights Of Taos Pueblo, Usdc, Dcnm

Native American Water Rights Settlement Project

Court Decree: Partial Final Judgment and Decree on the Water Rights of Taos Pueblo: Parties: Taos Pueblo, New Mexico, USA, Town of Taos, Taos Valley Acequia Association, El Prado Water and Sanitation District, 12 Mutual Domestic Water Consumer Associations. Recitals; Approval of Settlement Agreement; Contract Rights to Water from San Juan - Chama Project; Historic and Existing Use Water Rights; Historically Irrigated Acreage; Municipal, Domestic, and Industrial Use; Livestock Use; Groundwater Rights; Disclaimers; Records of Water Use; Change of Use; Rights Held in Trust; Conclusions; Entry and Modification of Decree. 38 Exhibits: 5973-1 Taos Pueblo Settlement Agreement; 5973-2, Att. 1 Buffalo ...


Uncounseled Convictions A Threat To Indians, John P. Lavelle Feb 2016

Uncounseled Convictions A Threat To Indians, John P. Lavelle

Faculty Scholarship

The Supreme Court is now poised to address whether a tribal court conviction that did not give the Indian defendant representation by a lawyer can be used to increase the sentence when the Indian is later prosecuted on a federal domestic assault charge.


Cedar Mesa Proposal Good For All, Kevin Washburn Feb 2016

Cedar Mesa Proposal Good For All, Kevin Washburn

Faculty Scholarship

A coalition of tribes, led by the Hopi and the Navajo, and including the Utes of Colorado and Utah and several of New Mexico’s pueblos have asked President Obama to use the Antiquities Act to declare this landscape a national monument to be protected alongside other nearby national treasures, such as Arches, Canyonlands, Bryce Canyon and Zion National Parks.


Border Town Bullies: The Bad Auto Deal And Subprime Lending Problem Among Navajo Nation Car Buyers, Megan Horning Jan 2016

Border Town Bullies: The Bad Auto Deal And Subprime Lending Problem Among Navajo Nation Car Buyers, Megan Horning

Student Published Scholarship

This article argues that due to the circumstances of Navajo Nation residents, Navajo car buyers have a greater need for cars and are therefore disproportionately harmed by unfair border town auto deals and subprime auto loans. Additionally, this article suggests several ways to address these issues while acknowledging the conundrum created if Navajo Nation residents are prevented from buying cars.

Part I of this article describes the current U.S. auto sales and lending process, including the stages of car buying, credit score calculation, and how national auto sales, lending, and investment markets profit from unfair car sales and subprime ...