Law Commons^™

Racial Equality: Old And New Strains And American Indians, Gloria Valencia-Weber

Faculty Scholarship

First, I will set the colonial context for equality that was anchored in a narrow white male model as the principal civic actor. Second, the discussion proceeds to the political status of American Indians, the basis for the nation-to-nation relations that secured in treaties the lands and resources that benefited non-Indians. Third, this Article explores the cultural difference between indigenous and constitutional visions of individual rights and community. Fourth, is a description of the efforts to remake Indians into a race and assimilate their governments into federalism. Fifth, this Article discusses the Santa Clara Pueblo v. Martinez case, which demonstrates …

A Legacy Of Public Law 280: Comparing And Contrasting Minnesota's New Rule For The Recognition Of Tribal Court Judgments With The Recent Arizona Rule, Kevin Washburn, Chloe Thompson

Faculty Scholarship

This article will evaluate the Minnesota Rule by comparing and contrasting its development, as well as its substantive content, with the new Arizona Rules. Part II of this article will describe the Minnesota Rule and compare it to the Arizona Rules that shortly preceded it. Part III will describe the rulemaking processes that produced the Minnesota and Arizona Rules and seek to provide insight into how Minnesota reached such a markedly different result than Arizona. Part III will also mine the insights from these processes and from other sources to offer some explanation as to why the Arizona Supreme Court …

Federal Law, State Policy, And Indian Gaming, Kevin Washburn

Faculty Scholarship

This Article will set forth the legal authorization and the economic success of Indian gaming by asking and answering two rhetorical questions: "What makes Indian gaming lawful?" and "What makes Indian gaming successful?" This Article will conclude with the observation that Indian gaming exists almost entirely at the mercy of state governments. It will argue that, while Indian gaming began as a cross-border issue, it no longer has those features. Indeed, it has been transformed into the very antithesis of a cross-border issue, a political issue that is addressed almost entirely in the sphere of state political processes. The issue …

Lara, Lawrence, Supreme Court Litigation, And Lessons From Social Movements, Kevin Washburn

Faculty Scholarship

United States v. Lara was hailed as a victory for Indian tribes because it upheld tribal criminal jurisdiction over non-member Indians. Lawrence v. Texas was hailed as a victory for the gay rights movement because it upheld the due process right of gays to be protected from criminal prosecutions for consensual sexual acts done in private within their own homes. Despite dramatically different contexts, the two cases share a common thread: both are cases in which interested groups achieved important successes by marshalling broad support for their arguments at the briefing stage which helped pave the way for Supreme Court …

Tribal Courts And Federal Sentencing, Kevin Washburn

Faculty Scholarship

In light of the overwhelming acceptance of the norm of tribal self-governance in federal Indian policy, the Commission's decision not to credit the legitimate work of tribal courts in adjudicating misdemeanor sentences is surprising. This article critically evaluates this peculiar and unexplained policy. Part I describes the current federal policy toward tribal governments with particular emphasis on tribal courts and explains the role of tribal courts in the unique federal criminal justice regime that governs Indian country. Part II describes the Federal Sentencing Guidelines with particular attention to the provisions on criminal history. Part II also evaluates the Commission's current …

Petitioner's Brief - Reargument Of Oliphant V. Suquamish Indian Tribe, John P. Lavelle

Faculty Scholarship

Does the Suquamish Indian Tribe possess inherent sovereign power to exercise criminal jurisdiction over non-Indians alleged to have committed misdemeanor crimes within the boundaries of the tribe's own reservation in violation of the Suquamish Law and Order Code?

At The Intersection Of North American Free Trade And Same-Sex Marriage, Laura Spitz

Faculty Scholarship

Using same-sex marriage as a presently salient site of cultural struggle, this article asks whether the U.S. can expect economic integration with Canada-on the scale envisioned by the North American Free Trade Agreement (NAFTA)-without feeling the influence of Canadian culture. The author comes at this question from the United States side because, while much has been written from Canadian points of view as to whether it is possible to protect and maintain national differences in the face of economic integration with the United States, very little has been written about whether economic globalization in North America could mean that Canadian …

Tribal Authority Under The Clean Air Act: How Is It Working?, Jana B. Milford

Natural Resources Journal

No abstract provided.

Recent Books On John Wesley Powell, Denise D. Fort

Natural Resources Journal

No abstract provided.

Intertribal Conflicts And Customary Law Regimes In North Africa: A Comparison Of Haratin And Ait 'Atta Indigenous Legal Systems, Anna Natividad Martinez

Tribal Law Journal

The Haratin people of North Africa are subjects in crisis; they are people whose origins are debated and whose social status is scorned. As an indigenous population in the midst of regional turmoil, they have been subject to removal, forced labor and economic deprivation. Their exploitation by both French colonial forces and other indigenous populations (namely Arabs and Berbers) has displaced the Haratin way of life and has subsumed their legal culture.

Diné Bi Beenahaz'Áanii: Codifying Indigenous Consuetudinary Law In The 21st Century, Kenneth Bobroff

Tribal Law Journal

The fundamental laws of the Diné, "the People" in the Navajo language, were placed by the Holy People long before Spaniards arrived in the New World. Since Coronado first traveled to Navajo Country almost five centuries ago, Diné have resisted European assaults on Navajo Law. On November 1, 2002, the Navajo Nation Council acknowledged the survival of the fundamental laws of the Diné, recognizing four specific constituent elements — traditional law, customary law, natural law, and common law – and explaining the principles of each.

Cultural Eclipse: The Effect On The Aboriginal Peoples In Manitoba, Kwesi Baffoe

Tribal Law Journal

Cultural eclipse is a phrase that I coined to describe the inter-relationship between the Aboriginal and European cultures as seen by an observer in space. It depicts the scene of two cultures initially rotating separately in time through the Universe. The European culture slowly drifts towards the Aboriginal culture and partially covers it without consuming it. This paper explores one of the ways indigenous culture is damaged during this "union".

Profile Of The Sayisi Dene Nation Of Tadoule Lake In Northern Manitoba, Kwesi Baffoe

Tribal Law Journal

The cultural groups among the Aboriginal peoples of Northern Canada correspond to climatic latitudinal divides. Above the tree line, where the boreal forest meets the tundra, are the Inuit whose territory stretches far into the arctic. South of the tree line are the Dene, and below them are the Cree nations of the prairies. The goal of this paper is to concentrate on the nature of the particular culture of the Dene People.

A Restatement Of The Common Law Of The Grand Traverse Band Of Ottawa And Chippewa Indians, Matthew L.M. Fletcher, Zeke Fletcher

Tribal Law Journal

This this article sets forth the case law propounded by the Grand Traverse Band Tribal Court. The Grand Traverse Band, with whom the United States concluded two treaties in the 19th Century, only to be denied sovereign status wrongly for over one hundred years, was "re-recognized" by the United States in 1980. The 1988 Grand Traverse Band Constitution established a politically independent Tribal Judiciary that has ruled on a wide spectrum of issues ranging from administrative and constitutional law to fishing and gaming, and from sovereign immunity and tribal economic development to tribal membership. The Restatement distills the principles of …

Navajo Nation V. Rodriguez And The Traditional Navajo Principle Of Hazhó'Ógo, Philip A. Morin

Tribal Law Journal

This case note examines in detail the adoption, and adaptation, of the United States Supreme Court's Miranda decision by the Supreme Court of the Navajo Nation.

The Supreme Court of the Navajo Nation carried out the directive of the Fundamental Laws of the Diné, to make Diné bi beehaz'áanii, or Navajo Common Law, the fundamental basis for its decisions. By doing so, the Supreme Court defined uniquely Navajo rights and procedures governing the custodial interview, holding that the traditional Navajo principle of hazhó'ógo requires truthful, transparent explanations to, and respectful treatment of, persons in police custody.

Mr. Morin's case note …

The Origins, Current Status, And Future Prospects Of Blood Quantum As The Definition Of Membership In The Navajo Nation, Paul Spruhan

Tribal Law Journal

In this article, the author discusses the origin of the Navajo Nation's blood requirement. Mr. Spruhan examines the intended purpose of the quarter-blood quantum definition and the role of the Bureau of Indian Affairs. He reviews the current status, regulation, and recent attempts to change the quarter-blood quantum requirement. He discusses the future of the quarter-blood quantum requirement with respect to the Navajo Nation Council's 2002 resolution known as the "Fundamental Laws of the Diné," a resolution mandating the application of traditional law, customary law, natural law, and common law to the Navajo Nation Government and its entities. In this …

Customary Law: The Way Things Were, Codified, Exra Rosser

Tribal Law Journal

The author explores the meaning of customary law from its most general meaning to the meaning and application within various tribal courts. Mr. Rosser discusses the weight of customary law when choice of law and conflict of law issues arise within tribal courts. He discusses the challenges in uniformly applying customary law. He also discusses the challenges in substantiating customs when presented to a tribal court, including the use of experts. Mr. Rosser highlights the complexity and variance of customary law between tribal courts while emphasizing the importance of tribal jurisprudence. Finally, the author provides an appendix of rules and …