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2001

Indigenous, Indian, and Aboriginal Law

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Full-Text Articles in Law

Brightening The Covenant Chain: Aboriginal Treaty Meanings In Law And History After Marshall, Mark D. Walters Oct 2001

Brightening The Covenant Chain: Aboriginal Treaty Meanings In Law And History After Marshall, Mark D. Walters

Dalhousie Law Journal

The decision of the Supreme Court of Canada in R. v. Marshall raises some difficult questions about the interpretation of Crown-Aboriginal treaties, especially treaties dating from the eighteenth century. The Court acknowledged that the treaty context is important to establishing the meaning of treaty texts, and Aboriginal and non-Aboriginal perspectives must be considered. As a result, judges must have regard to historical analyses of Crown-Aboriginal relations when interpreting these old treaties. In this article, the author explores some of the complex theoretical problems that such legal-historical analyses create, focusing in particular upon the possibility that lawyers and judges may reach ...


Memorandum Opinion Re Assiniboine And Sioux Tribes Of Fort Peck Indian Reservation, Water Court Of State Of Montana Aug 2001

Memorandum Opinion Re Assiniboine And Sioux Tribes Of Fort Peck Indian Reservation, Water Court Of State Of Montana

Native American Water Rights Settlement Project

Post Settlement Court Opinion: Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation, MT, Montana, Montana Reserved Water Rights Compact Commission, United States. Opinion disposes of three objections to settlement/Compact. It concludes that Compact is analogous to consent decree; objector has the initial burden of production; standard for approving a consent decree is that it is at least fair, adequate and reasonable, made in good faith, with arms-length negotiations and conforms to applicable laws; settlement must be in public’s interest but not necessarily in the public’s best interest, if otherwise reasonable; objectors must show that they ...


Resource Law Notes Newsletter, No. 52, Summer 2001, University Of Colorado Boulder. Natural Resources Law Center Jul 2001

Resource Law Notes Newsletter, No. 52, Summer 2001, University Of Colorado Boulder. Natural Resources Law Center

Resource Law Notes: The Newsletter of the Natural Resources Law Center (1984-2002)

No abstract provided.


The Inter-Temporal Character Of International And Comparative Law Regarding The Rights Of The Indigenous Populations Of The World, Sompong Sucharitkul Jul 2001

The Inter-Temporal Character Of International And Comparative Law Regarding The Rights Of The Indigenous Populations Of The World, Sompong Sucharitkul

Publications

This report explores ways and means in a selection of comparative legal systems to ensure adequate protection of the rights of indigenous peoples within the territorial confines of national jurisdictions. In most contemporary legal systems, attention has been drawn to the problems of how best to protect and safeguard the various fundamental rights of indigenous peoples of different tribes and denominations, co-existing in a single or multiple legal system. To ensure their survival and continued co-existence, not only their rights, but also their cultures, traditions, ways of life and civilizations, must be preserved intact as distinct but unique social, cultural ...


Creating Better Governance, Denise D. Fort Jun 2001

Creating Better Governance, Denise D. Fort

Two Decades of Water Law and Policy Reform: A Retrospective and Agenda for the Future (Summer Conference, June 13-15)

17 pages (includes illustration).

Contains 2 pages of references.


Clarifying State Water Rights And Adjudications, Greg Hobbs Jun 2001

Clarifying State Water Rights And Adjudications, Greg Hobbs

Two Decades of Water Law and Policy Reform: A Retrospective and Agenda for the Future (Summer Conference, June 13-15)

14 pages.

Contains footnotes.


Strategies To Facilitate Changes In Water Use, Bonnie G. Colby Jun 2001

Strategies To Facilitate Changes In Water Use, Bonnie G. Colby

Two Decades of Water Law and Policy Reform: A Retrospective and Agenda for the Future (Summer Conference, June 13-15)

21 pages.

Contains 4 pages of references and 2 pages of endnotes.


Clarifying State Water Rights And Adjudications, John E. Thorson Jun 2001

Clarifying State Water Rights And Adjudications, John E. Thorson

Two Decades of Water Law and Policy Reform: A Retrospective and Agenda for the Future (Summer Conference, June 13-15)

32 pages.

Contains references.


Two Decades Of Water Law And Policy Reform Proposals: An Overview, Lawrence J. Macdonnell Jun 2001

Two Decades Of Water Law And Policy Reform Proposals: An Overview, Lawrence J. Macdonnell

Two Decades of Water Law and Policy Reform: A Retrospective and Agenda for the Future (Summer Conference, June 13-15)

22 pages.

Contains references.


Acquiring Water For Tribes, Susan M. Williams Jun 2001

Acquiring Water For Tribes, Susan M. Williams

Two Decades of Water Law and Policy Reform: A Retrospective and Agenda for the Future (Summer Conference, June 13-15)

16 pages.

Contains references (page 15).


Agenda: Two Decades Of Water Law And Policy Reform: A Retrospective And Agenda For The Future, University Of Colorado Boulder. Natural Resources Law Center, Hydrosphere Resource Consultants, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Patrick & Stowell, P.C., Perkins Coie Llp, The William And Flora Hewlett Foundation Jun 2001

Agenda: Two Decades Of Water Law And Policy Reform: A Retrospective And Agenda For The Future, University Of Colorado Boulder. Natural Resources Law Center, Hydrosphere Resource Consultants, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Patrick & Stowell, P.C., Perkins Coie Llp, The William And Flora Hewlett Foundation

Two Decades of Water Law and Policy Reform: A Retrospective and Agenda for the Future (Summer Conference, June 13-15)

1 v. (various pagings) ; 29 cm

"Sponsors: Hydrosphere Resource Consultants; Modrall, Sperling, Roehl, Harris & Sisk, P.A.; Patrick & Stowell, P.C.; Perkins Coie LLP; The William and Flora Hewlett Foundation."

Conference speakers, moderators and/or panelists included University of Colorado School of Law professors Gary C. Bryner, Douglas S. Kenney, Sarah Krakoff, Kathryn Mutz, David H. Getches, Lawrence J. MacDonnell and James N. Corbridge, Jr.

Includes bibliographical references

The conference will examine the agenda for reforming and improving water law that has developed during the past two decades in the West, assesses what has (and has not) been accomplished by pursuing these reforms, and explores lessons ...


Native American Free Passage Rights Under The 1794 Jay Treaty: Survival Under United States Statutory Law And Canadian Common Law, Bryan Nickels May 2001

Native American Free Passage Rights Under The 1794 Jay Treaty: Survival Under United States Statutory Law And Canadian Common Law, Bryan Nickels

Boston College International and Comparative Law Review

Since 1794, Native American groups in both the United States (U.S.) and Canada have enjoyed the right of "free passage" across the U.S.-Canadian border per the provisions of the Jay Treaty. However, development and recognition of this right have taken decidedly different courses: while the U.S. has treated the right very liberally under statutory codification, the Canadian government has opted to develop, and restrict, the right under their courts' common law. This Note discusses the origin and development of the "free passage" right under the Jay Treaty, and encourages both the continued recognition of the right ...


Budding Translation, Milner S. Ball May 2001

Budding Translation, Milner S. Ball

Michigan Law Review

Among the American classics in my library, Black Elk Speaks is one of the least willing to rest closed on the shelf. It is the story of a vision, the duty that accompanies the vision, and the life of those whom the vision would animate. It can be justly read as tragedy, indictment, and struggle with the past. But it can also be read as affirmation and as invocation of hope for the future, possibilities that present themselves on this revisit. There are risks in making Black Elk Speaks the subject of a Classics Revisited, more risks than in Kenji ...


The Unsettling Of The West: How Indians Got The Best Water Rights, David H. Getches May 2001

The Unsettling Of The West: How Indians Got The Best Water Rights, David H. Getches

Michigan Law Review

A single, century-old court decision affects the water rights of nearly everyone in the West. The Supreme Court's two-page opinion in Winters v. United States sent out shock waves that reverberate today. By formulating the doctrine of reserved water rights, the Court put Indian tribes first in line for water in an arid region. Priority is everything where water law typically dictates that the senior water rights holder is satisfied first, even if it means taking all the water and leaving none for anyone else. In the West, water rights belong to "prior appropriators." The earliest users of water ...


Fort Belknap-Mt Compact Of 2001, Montana Apr 2001

Fort Belknap-Mt Compact Of 2001, Montana

Native American Water Rights Settlement Project

Settlement & State Legislation: No separate settlement agreement. Fort Belknap-Montana compact ratified. (MCA 85-20-1001) (April 16, 2001) Parties: Gros Ventre and Assiniboine Tribes of the Fort Belknap Reservation, MT and US. The Tribes have right to 645 c/f/s from the Milk River and its tributaries upstream from Reservation diversion point with a priority date of October 17, 1855. Off-stream storage is limited to 60,000 a/f and up to 125 c/f/s is for irrigation and other historical purposes. Tribes have right to develop surface water in the Milk River Basin for livestock impoundments provided they don't use more than 30 a/f/y. Tribes have rights to surface water and its hydrologically connected groundwater in the Peoples Creek Basin; water may also be stored if kept within the Reservation; surface water is also available for livestock impoundments. Tribes have right to 8,024 a/f/y in surface of Beaver Creek Basin and groundwater hydrologically connected to surface for irrigation use. Tribes have right to water in the Missouri River Basin for non-irrigation purposes and may develop surface water for livestock (max 30 a/f/y impoundments.) Tribes have the following rights to off-reservation trust and fee lands in the Missouri and Peoples Creek Basins: 1,135 a/f/y for irrigation (priority date July 24, 1893), 1 ...


Agenda: A Cartography Of Governance: Exploring The Province Of Environmental Ngos, University Of Colorado Boulder. School Of Law, University Of Colorado Boulder. Environmental Program, University Of Tulsa. National Energy-Environment Law & Policy Institute, University Of Colorado Boulder. United Government Of Graduate Students Apr 2001

Agenda: A Cartography Of Governance: Exploring The Province Of Environmental Ngos, University Of Colorado Boulder. School Of Law, University Of Colorado Boulder. Environmental Program, University Of Tulsa. National Energy-Environment Law & Policy Institute, University Of Colorado Boulder. United Government Of Graduate Students

A Cartography of Governance: Exploring the Province of Environmental NGOs (April 7-8)

Presented by: the Colorado Journal of International Environmental Law and Policy on April 7 & 8, 2001. Symposium director: Lakshman D. Guruswamy.

Co-sponsored by: University of Colorado School of Law, University of Colorado Environmental Program, University of Tulsa National Energy-Environment Law and Policy Institute, University of Colorado United Government of Graduate Students.

The papers and edited proceedings of the conference will be published in a special symposium issue of the Colorado Journal of International Environmental Law & Policy (CJIELP).

"The first objective of the Symposium was to understand and explore the growing importance of nongovernmental actors, and delineate the manner in which they have changed the cartography of national and international governance. The importance of this objective was demonstrated by the carnage of September 11, 2001. The recent terrorist attacks also demonstrated the extent to which we are inhabitants of a global village. This Symposium attempted to understand the manner in which two nonterrorist, nongovernmental entities have become increasingly important actors in this global village. It reviewed the manner in which corporations and NGOs are changing the geo-political and socio-economic boundaries of national and international governance.

The second objective brings special focus to bear on environmental NGOs. The second objective seeks answers to the questions: Have not-for-profits or NGOs, gone too far in diminishing the role of the public sector and the nation-state? Is the prevailing faith in the increasingly important role played by NGOs misplaced?

After establishing the importance of nongovernmental actors in national and international governance, the Symposium sought to ascertain whether not-for-profits or NGOs have gone too far in diminishing the role of the public sector and the nation-state. It also addressed the corollary issue of whether the prevailing faith in the increasingly important roles played by NGOs is misplaced.

The Symposium identified four case studies in an attempt to shed light on these questions and to acknowledge the functions that each sector is best suited to perform. Specifically, the Symposium employed the prism of environmental policy, science, and law to examine the roles played by NGOs in addressing: (1) GMOs; (2) dams; (3) wildlife and species; and (4) indigenous peoples." -- Lakshman D. Guruswamy, Cartography of Governance: An Introduction, 13 Colo. J. Int'l Envtl. L. & Pol'y 1-3 (2002).


Adjudication And The Problems Of Incommensurability, Brett G. Scharffs Apr 2001

Adjudication And The Problems Of Incommensurability, Brett G. Scharffs

William & Mary Law Review

No abstract provided.


History And Interpretation Of The Great Case Of Johnson V. M'Intosh, Eric Kades Apr 2001

History And Interpretation Of The Great Case Of Johnson V. M'Intosh, Eric Kades

Faculty Publications

No abstract provided.


Recognizing Substance: Adoptees And Affiliates Of Native American Tribes Claiming Free Exercise Rights Apr 2001

Recognizing Substance: Adoptees And Affiliates Of Native American Tribes Claiming Free Exercise Rights

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


The Nullification Of Section 718.2(E): Aggravating Aboriginal Over-Representation In Canadian Prisons, Renee Pelletier Apr 2001

The Nullification Of Section 718.2(E): Aggravating Aboriginal Over-Representation In Canadian Prisons, Renee Pelletier

Osgoode Hall Law Journal

This article considers the disproportionate incarceration rate of Aboriginal offenders in Canadian prisons and the effectiveness of Parliament's attempts at alleviating this problem through the enactment of section 718.2(e) of the Criminal Code. This article focuses primarily on two recent Supreme Court of Canada decisions-R. v. Gladue and R. v. Wells. It is argued that the Court's narrow view of systemic factors, the Imitation it places on section 718.2(e) through its discussion of serious offences, as well as a number of practical problems inherent in the framework provided by the Court, strip the provision ...


Aboriginal Peoples And Mandatory Sentencing, Larry N. Chartrand Apr 2001

Aboriginal Peoples And Mandatory Sentencing, Larry N. Chartrand

Osgoode Hall Law Journal

The author examines the impact of mandatory minimum sentencing on Aboriginal peoples in Canada. Emphasis is placed on the recently enacted mandatory minimum sentencing provisions for firearms offenses. The author argues that the enactment of such provisions are inconsistent with Parliament's objectives as reflected in section 718.2(e) of the Criminal Code which requires sentencing judges to pay "particular attention to the circumstances of Aboriginal offenders." In addition, the author explores preliminary arguments to support a finding that mandatory minimum sentences applied to Aboriginal offenders violate sections 12 and 15 of the Charter.


Rescuing Paha Sapa: Achieving Environmental Justice By Restoring The Great Grasslands And Returning The Sacred Black Hills To The Great Sioux Nation, John P. Lavelle Apr 2001

Rescuing Paha Sapa: Achieving Environmental Justice By Restoring The Great Grasslands And Returning The Sacred Black Hills To The Great Sioux Nation, John P. Lavelle

Faculty Scholarship

Looking at a unique proposal of the Conservation Alliance of the Great Plains for establishing a "Greater Black Hills Wildlife Protected Area" in the Northern Plains region. Especially in light of the proposal's potential impacts on the continuing efforts of the Sioux tribes of this region to secure the return of the sacred Black Hills to sovereign tribal ownership.


A Constitutional Examination Of The Federal Exemptions For Native American Religious Peyote Use, Christopher Parker Mar 2001

A Constitutional Examination Of The Federal Exemptions For Native American Religious Peyote Use, Christopher Parker

Brigham Young University Journal of Public Law

No abstract provided.


Solicitor Leshy Opinion--Eastern Boundary Of The Sandia Pueblo Grant, John D. Leshy Jan 2001

Solicitor Leshy Opinion--Eastern Boundary Of The Sandia Pueblo Grant, John D. Leshy

Sandia Pueblo Mountain Claim

The question of the proper location of the eastern boundary of the 1748 Spanish land grant to the Pueblo of Sandia in central New Mexico has been a matter of public controversy for many years. In December 1988, Solicitor Ralph Tarr issued an Opinion, in which Secretary Hodel concurred, rejecting the pueblo's claim that the eastern boundary of its grant should be resurveyed and located along the main ridge of the Sandia Mountain rather than along a foothill ridge. My reconsideration of the Tarr Opinion's conclusion on the boundary issue does not depend on a formal remand from ...


Shivwits Band Of The Paiute Indian Tribe Of Utah Water Rights Settlement Agreement, Shivwits Band Of The Paiute Indian Tribe Of Ut Et Al Jan 2001

Shivwits Band Of The Paiute Indian Tribe Of Utah Water Rights Settlement Agreement, Shivwits Band Of The Paiute Indian Tribe Of Ut Et Al

Native American Water Rights Settlement Project

Settlement Agreement: Shivwits Band of The Paiute Indian Tribe of Utah Water Rights Settlement Agreement (Jan. 18, 2001) Parties: Shivwits Band of the Paiute Indian Tribe of UT, UT, US, New Santa Clara Field Canal Co., Ivins Irrigation Co., Gunlock Irrigation Co., Lower Gunlock Reservoir Corp., New Santa Clara Field Canal Co., Washington County Water Conservancy District, City of St. George, St. George Field Canal Co., Bloomington Canal Co., Southgate Irrigation Co,. Edward Bowler. (Shivwitz Band Only, not the other 4 Bands of Utah Paiutes) The Band will have use of a total of 4000 acre-feet per year including 100 ...


The Status Of Traditional Indian Justice, Agustin Grijalva Jan 2001

The Status Of Traditional Indian Justice, Agustin Grijalva

Tribal Law Journal

The Status of Traditional Indian Justice in Ecuador by Agustin Grijalva discusses constitutional reforms in Ecuador that recognize traditional Indian law and traditional Indian authorities as collective Indian rights. This article explores the historical background of the constitutional reforms, how these reforms might affect the current Ecuadorian judicial system and some potential problems in administering these reforms.


Restoring Harmony Through Nalyeeh: Can The Navajo Common Law Of Torts Be Applied In State And Federal Forums?, J. R. Mueller Jan 2001

Restoring Harmony Through Nalyeeh: Can The Navajo Common Law Of Torts Be Applied In State And Federal Forums?, J. R. Mueller

Tribal Law Journal

Restoring Harmony through Nalyeeh: Can the Navajo Common Law of Torts be Applied in State and Federal Forums? by J. R. Mueller demonstrates "that the Navajo Nation has developed and articulated a modern tort law and doctrine of restitution grounded in Navajo tradition and evolved from ancient custom, similar to the Anglo-American notion of common law." This article also explores whether tribal customary law can be applied in state and federal forums in light of a recent federal case Cheromiah v. United States.


Creating Opportunity: Admission In U.S. Legal Education, Rennard J. Strickland Jan 2001

Creating Opportunity: Admission In U.S. Legal Education, Rennard J. Strickland

Rennard J. Strickland

No abstract provided.


The Miccosukee Indians And Environmental Law: A Confederacy Of Hope, William H. Rodgers, Jr. Jan 2001

The Miccosukee Indians And Environmental Law: A Confederacy Of Hope, William H. Rodgers, Jr.

Articles

Two legal orphans have found each other. The older one is "Indian Law," a confused, embarrassing, and twisted body of legal rules that "explain" the relationships between the United States and its native peoples. The newer one is "Environmental Law," a complex and jumbled stew of cases and statutes that "prescribe" proper behavior between modern Americans and the natural world.

Both these children of the law are suspected of subversion—the one is tainted by advocates of separate sovereignties, the other by critics of the American way of life. For Native Americans and environmentalists, their recent legal merger is a ...


Exercising Cultural Self-Determination: The Makah Indian Tribe Goes Whaling, Robert J. Miller Jan 2001

Exercising Cultural Self-Determination: The Makah Indian Tribe Goes Whaling, Robert J. Miller

American Indian Law Review

No abstract provided.