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Articles 1 - 30 of 42
Full-Text Articles in Law
Synching Science And Policy To Address Climate Change In Tribal Communities, John C. Ruple, Heather Tanana
Synching Science And Policy To Address Climate Change In Tribal Communities, John C. Ruple, Heather Tanana
Utah Law Faculty Scholarship
Climate change is a global environmental problem, and yet, the adverse impacts of climate change are disproportionately felt in tribal communities. There are 574 federally recognized tribes in the United States. While each tribe is unique and independent, many tribes share a common history of colonization and a connection to the land—legally and culturally. The majority of tribal nations were removed from their traditional homelands and placed on reservations by the federal government. In doing so, the federal government established these reservations as a permanent home for the tribe. But that home is now threatened by climate change.
The ...
An Uncomfortable Truth: Indigenous Communities And Law In New England: Roger Williams University Law Review Symposium 10/22/2021, Roger Williams University School Of Law
An Uncomfortable Truth: Indigenous Communities And Law In New England: Roger Williams University Law Review Symposium 10/22/2021, Roger Williams University School Of Law
School of Law Conferences, Lectures & Events
No abstract provided.
Welcome Home: Aboriginal Rights Law After Desautel, Kent Mcneil, Kerry Wilkins
Welcome Home: Aboriginal Rights Law After Desautel, Kent Mcneil, Kerry Wilkins
All Papers
In R v Desautel, decided April 23, 2021, a majority of the Supreme Court of Canada held, for the first time, that an Indigenous community located in the United States, whose members are neither citizens nor residents of Canada, can have an existing Aboriginal right, protected by section 35 of the Constitution Act, 1982, to hunt a specified area within Canada. This will be so, the Supreme Court majority held, where the community can show that it descends from (is a successor of) an Indigenous community that was present in what is now Canada at the time of the ancestral ...
It's None Of Your Business: State Regulation Of Tribal Business Undermines Sovereignty And Justice, Robin M. Rotman
It's None Of Your Business: State Regulation Of Tribal Business Undermines Sovereignty And Justice, Robin M. Rotman
Faculty Publications
The U.S. Constitution grants the federal government plenary power over American Indian affairs, yet states are increasingly attempting to assert regulatory and tax jurisdiction over tribal businesses. This overreach threatens tribal sovereignty and contravenes the terms of treaties entered between the United States and American Indian tribes. This Article begins by examining the legal foundations of federal, state, and tribal relations. It then examines recent cases across four business sectors - gaming, tobacco sales, petroleum sales, and online lending - in order to illustrate the pervasive jurisdictional challenges faced by courts in cases involving tribal businesses. This Article offers three recommendations ...
Universal Access To Clean Water For Tribes In The Colorado River Basin, Heather Tanana, Jaime Garcia, Ana Olaya, Chelsea Colwyn, Hanna Larsen, Ryan Williams, Jonathan King
Universal Access To Clean Water For Tribes In The Colorado River Basin, Heather Tanana, Jaime Garcia, Ana Olaya, Chelsea Colwyn, Hanna Larsen, Ryan Williams, Jonathan King
Utah Law Faculty Scholarship
The coronavirus pandemic has tragically highlighted the vast and long standing inequities facing Tribal communities, including disparities in water access. According to the Centers for Disease Control and Prevention (CDC), American Indians and Alaska Natives (AI/AN) are at least 3.5 times more likely than white persons to contract COVID-19. Limited access to running water is one of the main factors contributing to this elevated rate of incidence.
This report describes current conditions among Tribes in the Colorado River Basin. It outlines the four main challenges in drinking water access: (1) Native American households are more likely to lack ...
Law Library Blog (October 2021): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Blog (October 2021): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Newsletters/Blog
No abstract provided.
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
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 ...
Yellen V. Confederated Tribes Of The Chehalis Reservation: Brief Of Professors And Historians As Amici Curiae Supporting Respondents, Maggie Blackhawk, Michael Blumm, Kirsten Carlson, Sarah Deer, Angelique Eaglewoman, Jacqueline P. Hand, John P. Lavelle, Michael D. Oeser, Richard D. Pomp, Kekek Jason Stark, Michalyn Steele, Elizabeth Kronk Warner, Jack F. Williams, Marcia Zug
Yellen V. Confederated Tribes Of The Chehalis Reservation: Brief Of Professors And Historians As Amici Curiae Supporting Respondents, Maggie Blackhawk, Michael Blumm, Kirsten Carlson, Sarah Deer, Angelique Eaglewoman, Jacqueline P. Hand, John P. Lavelle, Michael D. Oeser, Richard D. Pomp, Kekek Jason Stark, Michalyn Steele, Elizabeth Kronk Warner, Jack F. Williams, Marcia Zug
Utah Law Faculty Scholarship
Amici curiae are law professors who teach and write in the area of federal Indian law and Native American legal history. They file this brief to explain the history of the federal government’s practice of “recognizing” Indian tribes generally, as well as the specific history of recognition of Alaska Native tribes.
Protecting Our Spaces Of Memory: Rediscovering The Seneca Nation Settlement Act Through Archives, Rebecca Chapman
Protecting Our Spaces Of Memory: Rediscovering The Seneca Nation Settlement Act Through Archives, Rebecca Chapman
Law Librarian Journal Articles
Archival spaces act as collective memory, and the need to preserve and protect those spaces is critical for understanding historical events. To illustrate the idea of archival space as a space of memory, this article looks at the Seneca Nation Settlement Act, which is more fully understood through the use and interpretation of archival materials.
The Resilience Of Métis Title: Rejecting Assumptions Of Extinguishment, Karen Drake, Adam James Patrick Gaudry
The Resilience Of Métis Title: Rejecting Assumptions Of Extinguishment, Karen Drake, Adam James Patrick Gaudry
Articles & Book Chapters
For many years, the Crown disputed Métis title claims by contending that any previously existing Métis rights, including title, had been extinguished. We argue, however, that this is not the case in at least some areas of the Métis homeland. In this chapter, we review the three means by which Aboriginal rights can be extinguished in Canadian law: by surrender, by legislation prior to 17 April 1982, and by constitutional amendment. This chapter builds on our previous work, in which we argue that historical Métis land use patterns can satisfy the test for Aboriginal title. The relevant case law here ...
Cash Back: A Yellowhead Institute Red Paper, Shiri Pasternak, Naiomi Metallic, Yumi Numata, Anita Sekharan, Jasmyn Galley, Samuel Wong
Cash Back: A Yellowhead Institute Red Paper, Shiri Pasternak, Naiomi Metallic, Yumi Numata, Anita Sekharan, Jasmyn Galley, Samuel Wong
Reports & Public Policy Documents
Picking up from Land Back, the first Red Paper by Yellowhead about the project of land reclamation, Cash Back looks at how the dispossession of Indigenous lands created a dependency on the state due to the loss of economic livelihood. Cash Back is about restitution from the perspective of stolen wealth.
From Canada’s perspective, the value of Indigenous lands rests on what can be extracted and commodified. The economy has been built on the transformation of Indigenous lands and waterways into corporate profit and national power. In place of their riches in territory, Canada set up for First Nations ...
Who Are The Métis? The Role Of Free, Prior And Informed Consent In Identifying A Métis Rights-Holder, Karen Drake
Who Are The Métis? The Role Of Free, Prior And Informed Consent In Identifying A Métis Rights-Holder, Karen Drake
Articles & Book Chapters
The rise of the duty to consult and accommodate has generated an increase in Indigenous-industry agreements. For proponents tasked with carrying out the procedural aspects of the duty, Indigenous-industry agreements offer relative certainty compared to the ambiguity involved in determining whether the duty has been legally satisfied. For Indigenous peoples, although the drawbacks of Indigenous-industry agreements are well documented, these agreements can potentially instantiate the principle of free, prior and informed consent. Compared to First Nation and Inuit peoples, though, Métis rights-holders are entering into comparatively fewer Indigenous-industry agreements.One cause of this phenomenon is the supposed uncertainty surrounding the ...
Civil Procedure Update 2021 (Handout And Slide Deck), Verónica Gonzales-Zamora, Julio C. Romero
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.
Textualism And The Indian Canons Of Statutory Construction, Alexander Tallchief Skibine
Textualism And The Indian Canons Of Statutory Construction, Alexander Tallchief Skibine
Utah Law Faculty Scholarship
When interpreting statutes enacted for the benefit or regulation of Indians or construing treaties signed with Indian Nations, courts are supposed to apply any of five specific canons of construction relating to the field of Indian Affairs. Through an examination of the Supreme Court’s cases involving statutory or treaty interpretation relating to Indian nations since 1987, this Article demonstrates that the Court has generally been faithful in applying canons relating to treaty interpretation or abrogation. The Court has also respected the canon requiring unequivocal expression of congressional intent before finding an abrogation of tribal sovereign immunity. However, there are ...
Beyond The Pandemic: Historical Infrastructure, Funding, And Data Access Challenges In Indian Country, Heather Tanana, Aila Hoss
Beyond The Pandemic: Historical Infrastructure, Funding, And Data Access Challenges In Indian Country, Heather Tanana, Aila Hoss
Utah Law Faculty Scholarship
The COVID-19 pandemic has disproportionately impacted Tribal communities, in part, due to the historical inequities that Tribes have faced for centuries. As sovereign nations, Tribes have the authority to self-govern their people and land. However, the federal government has a special trust responsibility and treaty obligations to Tribes that it often has failed to fulfill. As a result, many Tribal communities live in inferior living conditions as compared to their non-Native counterparts. This Chapter builds on the prior report to explore the historical inequities Tribes experience and how they have been compounded by the pandemic. More specifically, it identifies persistent ...
When Imitation Is Not Flattery: Addressing Cultural Exploitation In Guatemala Through A Sui Generis Model, Paul Figueroa
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 ...
The Factual Basis For Indigenous Land Rights, Kent Mcneil
The Factual Basis For Indigenous Land Rights, Kent Mcneil
Articles & Book Chapters
Groundbreaking judgments in Australia and Canada in the 1990s reveal that Indigenous land rights depend on evidence of Indigenous occupation and law when the British Crown asserted sovereignty. Looking back at earlier Indigenous rights decisions, it is apparent that they were not based on facts, but on prejudicial and erroneous assumptions about Indigenous peoples. In St. Catherine’s Milling (1888), Lord Watson said the rights of the Ojibwe Indians were based solely on the goodwill of the Crown, a conclusion that evidently stemmed from the trial judge’s racist assessment of Ojibwe society. In Cooper v Stuart (1889), Lord Watson ...
Without Doors: Native Nations And The Convention, Mary Sarah Bilder
Without Doors: Native Nations And The Convention, Mary Sarah Bilder
Boston College Law School Faculty Papers
The Constitution’s apparent textual near silence with respect to Native Nations is misleading. As this Article reveals, four representatives of Native Nations visited Philadelphia in the summer of 1787. Their visit ensured that the Constitution secured the general government’s treaty authority with Native Nations and decisively barred state claims of authority. But, the visits also threatened to disrupt Congress’s passage of the Northwest Ordinance and the vision of nationally sanctioned white settlement. In the process of successfully preventing the representatives from reaching Congress, Secretary at War Henry Knox developed the central tenets of what would become the ...
What Is Cultural Misappropriation And Why Does It Matter? 03-31-2021, Roger Williams University School Of Law
What Is Cultural Misappropriation And Why Does It Matter? 03-31-2021, Roger Williams University School Of Law
School of Law Conferences, Lectures & Events
No abstract provided.
Changing Consultation, Elizabeth Kronk Warner, Kathy Lynn, Kyle Whyte
Changing Consultation, Elizabeth Kronk Warner, Kathy Lynn, Kyle Whyte
Tribal Consultation Database
Examples abound of both historic and modern situations where the federal government and tribes failed to engage in effective consultation. Yet, numerous reasons exist—such as effective management of natural resources and the negative impacts of climate change—for tribes and the federal government to engage in effective consultation. Effective consultation can be met through strong government-to-government relationships between Indian tribes and federal agencies and should be based on respect, mutual understanding, and common goals. This can be accomplished through interactions that will enhance consultation and provide other pathways to achieving a strong government-to-government relationship. To date, however, many within ...
Changing Consultation, Elizabeth Kronk Warner, Kathy Lynn, Kyle Whyte
Changing Consultation, Elizabeth Kronk Warner, Kathy Lynn, Kyle Whyte
Tribal Consultation Project Work
Examples abound of both historic and modern situations where the federal government and tribes failed to engage in effective consultation. Yet, numerous reasons exist—such as effective management of natural resources and the negative impacts of climate change—for tribes and the federal government to engage in effective consultation. Effective consultation can be met through strong government-to-government relationships between Indian tribes and federal agencies and should be based on respect, mutual understanding, and common goals. This can be accomplished through interactions that will enhance consultation and provide other pathways to achieving a strong government-to-government relationship. To date, however, many within ...
Law Library Blog (March 2021): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Blog (March 2021): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Newsletters/Blog
No abstract provided.
Indigenous Environmental Rights And Sustainable Development: Lessons From Totonicapán In Guatemala, Patricia Galvao-Ferreira, Mario Mancilla
Indigenous Environmental Rights And Sustainable Development: Lessons From Totonicapán In Guatemala, Patricia Galvao-Ferreira, Mario Mancilla
Law Publications
The chapter argues that in order to contribute to a more comprehensive theoretical understanding of the many nuances of the social dimension of sustainable development, IEL scholars should engage more systematically with emerging national and international research on Indigenous alternative perspectives on environmental governance. The approach highlighted here is distinct from existing discussions related to environmental justice and Indigenous peoples, which highlights the disproportionate environmental impacts Indigenous peoples suffer as a racialized social group, because of their close cultural and existential interaction with the environment. The aim is to move from treating Indigenous peoples as victims of environmental racism, to ...
Indigenous Law And The Common Law, Kent Mcneil
Indigenous Law And The Common Law, Kent Mcneil
Articles & Book Chapters
Indigenous law does not need to be incorporated into Canadian law by treaty, statute, or judicial pronouncement to be part of the domestic law of Canada. Indigenous law exists and is followed in Indigenous communities. It is living law that predated European colonization and has continued up to the present. However, Canadian judges generally are not familiar with it in the way they are with the common law and civil law. Consequently, when relied upon in court evidence of it has to be presented by the testimony of experts, such as Elders and Indigenous knowledge keepers. This is simply a ...
Grassroots And Litigation-Based Approaches To Advancing Indigenous Rights: Lessons From Extractive Industry Resistance In Mesoamerica, Justin Wiebe
Centre for Law and the Environment
Indigenous peoples are frequently recognized as excellent stewards of their traditional territories. These territories, which often exhibit extraordinary levels of biodiversity, face disproportionate and growing threats from extractive industry. In opposing these threats, Indigenous peoples increasingly rely on internationally-defined Indigenous rights, including those set out in UNDRIP and ILO Convention 169. It is uncertain, however, how these rights are most effectively advanced. In this paper, I tease out strategies — both grassroots-based and litigation-based — that show promise in this regard. Drawing on Waorani resistance to an oil auction in Ecuador and Indigenous resistance to a large-scale mining project in Guatemala, I ...
Living In Two Worlds, Elizabeth Kronk Warner
Living In Two Worlds, Elizabeth Kronk Warner
Utah Law Faculty Scholarship
Anti-racism calls us to work toward ending racial hatred, bias, systemic racism, and the oppression of marginalized groups. For many of us working in higher education leadership, this means that we are actively creating space for marginalized voices both in classrooms and through research. But who should be included is not always a question with a clear answer. Additionally, because of the complexity of identity, not all members of a marginalized community may express themselves in a monothetic way. This essay examines such a group possessing a complex identity – Indigenous people, from my personal lived experience. The essay explores how ...
Mcgirt Policy Briefs: Cultural Resources, Monte Mills
Mcgirt Policy Briefs: Cultural Resources, Monte Mills
Faculty Journal Articles & Other Writings
On July 9, 2020, the United States Supreme Court issued its decision in McGirt v. Oklahoma. Although the only actual effect of that decision was on Mr. McGirt’s state court criminal conviction, rendering it invalid in light of the continuing existence of the Muscogee (Creek) Nation’s reservation, the implications of McGirt reverberated throughout Oklahoma and the nation. By rejecting Oklahoma’s arguments that the march to statehood had resulted in the implicit disestablishment of the Creek’s reservation (and, by analogy, those of the neighboring and similarly situated Cherokee, Chickasaw, Choctaw, and Seminole Nations), Justice Gorsuch’s opinion ...
Decolonizing Indigenous Migration, Angela R. Riley, Kristen A. Carpenter
Decolonizing Indigenous Migration, Angela R. Riley, Kristen A. Carpenter
Articles
As global attention turns increasingly to issues of migration, the Indigenous identity of migrants often remains invisible. At the U.S.-Mexico border, for example, a significant number of the individuals now being detained are people of indigenous origin, whether Kekchi, Mam, Achi, Ixil, Awakatek, Jakaltek or Qanjobal, coming from communities in Venezuela, Honduras, Guatemala and other countries. They may be leaving their homelands precisely because their rights as Indigenous Peoples, for example the right to occupy land collectively and without forcible removal, have been violated. But once they reach the United States, they are treated as any other migrants ...
Introduction To The Symposium On The Impact Of Indigenous Peoples On International Law, S. James Anaya, Antony Anghie
Introduction To The Symposium On The Impact Of Indigenous Peoples On International Law, S. James Anaya, Antony Anghie
Articles
No abstract provided.
Indigenous Peoples And Diplomacy On The World Stage, Kristen Carpenter, Alexey Tsykarev
Indigenous Peoples And Diplomacy On The World Stage, Kristen Carpenter, Alexey Tsykarev
Articles
No abstract provided.