Law Commons^™

A Symbol Of Unity: Freeing The Aboriginal Flag, Dominic Shaw

BYU Law Review

No abstract provided.

Petition For Writ Of Certiorari

Jamestown S'Klallam Tribe and Port Gamble S'Klallam Tribe v. Lummi Nation, Docket No. 21-913 (142 S.Ct. 1123 (2022))

No abstract provided.

Ute Indian Tribe Of The Uintah & Ouray Reservation V. U.S. Dep't Of Interior, Valan Anthos

Public Land & Resources Law Review

The Ute Indian Tribe of the Uintah & Ouray Reservation brought 16 claims against federal agencies and the State of Utah for alleged mismanagement of water resources held in trust and for alleged discrimination in water allocation. The United States District Court for the District of Columbia dismissed several of the claims as time-barred and others as lacking a proper statutory basis to create an enforceable trust duty. The remaining claims were transferred to the United States District Court of the District of Utah because the events occurred in Utah and most of the parties reside there.

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 article …

Bahr V. Regan, Aspen B. Ward

Public Land & Resources Law Review

In June 2015, the Lake Fire burned through California’s San Bernardino National Forest. Three hundred miles east of the fire, six air quality monitors exceeded NAAQS in Phoenix, Arizona. Arizona’s Department of Environmental Quality petitioned the EPA to exclude those exceedances to avoid stricter regulatory burdens and the need for contingency measures. Applying the Exceptional Events Rule, the EPA permitted the petition to exclude the data therefore allowing Phoenix to successfully demonstrate attainment of the ozone NAAQS by the July 2018 deadline. Petitioners sought review of the EPA’s final decision and were denied their petition for review by the Ninth …

Preview—Lac Courte Orielles Band Of Lake Superior Chippewa V. Evers: Just How Special Is Indian Law?, Zachary M. Krumm

Public Land & Resources Law Review

The Seventh Circuit Court of Appeals will hear oral arguments on Monday, November 8, 2021, at 9:30 a.m. at Everett McKinley Dirksen Courthouse in Chicago, Illinois. This case asks whether states may assess property taxes on Indian-owned reservation fee lands that were allotted under treaty, not the General Allotment Act. The lower court held that reservation allotments which had at any time been owned by non-tribal-members could be subject to state property tax. Allotments always held by members remained exempt. While this issue is somewhat narrow, it raises broad questions about applying the well-established Indian canons of construction.

A Tribe Divided: The Threat Of The Loss Of Tribal Autonomy And Culture Facing Transnational Tribes On The Northern And Southern Borders Of The United States, Jacob Moeller

Vanderbilt Journal of Transnational Law

Indigenous peoples in the northern and southwestern regions of the United States face challenges to the preservation of their cultures, economies, governments, and family relations as a result of the international borders that have bisected their traditional lands. While there is a history of treatymaking and governmental policy attempting to address these issues, the lack of an effective solution and concrete. border policy for tribe members in these regions leaves them without recourse. Some scholars suggest universal US citizenship for tribe members, others suggest tribe-specific legislation, and some even suggest that the tribes pursue litigation against the United States to …

Janice Forsyth, Reclaiming Tom Long Boat: Indigenous Self-Determination In Canadian Sport. With A Foreword By Willie Littlechild., Gwooyim Gyat Hawaaw

Dalhousie Law Journal

Established in 1951, the Tom Longboat Awards seek to “recognize Aboriginal athletes for their outstanding contributions to sport in Canada.” In her meticulous work of cultural history, the Cree kinesiologist Janice Forsyth places this official discourse in settler-colonial context. “The history of sport and physical activity in Canada,” she clarifies for sports scholars and administrators, “is not a history of empowerment or inclusion, or even of opportunity, accommodation, or amalgamation. Rather, it is a history of containment, control, and elimination.” Forsyth’s incisive analysis consequently goes well beyond the fields of sociology and sport history. On my reading, her work makes …

Nazi Germany's Race Laws, The United States, And American Indians, Robert J. Miller

St. John's Law Review

(Excerpt)

Most Americans would be shocked to learn that in the 1920s and 1930s Adolf Hitler and Nazi scholars, lawyers, and officials were studying United States law while developing Germany’s policies and laws concerning Jews and the conquest of Eastern Europe. Most Americans would also be surprised that, as the leaders of the Third Reich were turning racist ideas into official German policies, Nazis were carefully studying United States federal Indian law and state laws that discriminated against Indian nations and American Indians.

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

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 …

Man Camps And Bad Men: Litigating Violence Against American Indian Women, Ana Condes

Northwestern University Law Review

The crisis of sexual violence plaguing Indian Country is made drastically worse by oil-pipeline construction, which often occurs near reservations. The “man camps” constructed to house pipeline workers are hotbeds of rape, domestic violence, and sex trafficking, and American Indian women are frequently targeted due to a perception that men will not be prosecuted for assaulting them. Victims have little recourse, facing underfunded police departments, indifferent prosecutors, and a federal government all too willing to turn a blind eye to the ongoing violence.

This Note proposes a litigation strategy for tribes to address the crisis and compel federal action. Litigation …

A Human Rights Crisis Under Our Roof, Aglae Eufracio

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Fiscal Decolonization-Indigenous Fiscal Autonomy And Tax Jurisdiction, Riad Kherallah

LLM Theses

This thesis focuses on the relationship between Indigenous fiscal autonomy and self-determination. Indigenous nations’ ability to achieve self-determination is dependent upon their ability to autonomously finance self-government. Unfortunately, Canada’s colonial policies have weakened Indigenous economies and rendered them dependent upon the Crown. Due to Indigenous nations’ lack of fiscal autonomy, Crown policies designed to promote Indigenous self-government have proven inadequate. This thesis argues for using the United Nations Declaration on the Rights of Indigenous Peoples as a blueprint for developing more equitable economic relations. While there are various elements to Crown-Indigenous economic relations, this thesis focuses on the distribution of …

It's None Of Your Business: State Regulation Of Tribal Business Undermines Sovereignty And Justice, Robin M. Rotman, Sam J. Carter

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 …

Nature’S Rights, Christiana Ochoa

Michigan Journal of Environmental & Administrative Law

Do forests and rivers possess standing to sue? Do mountain ranges have substantive rights? A recent issue of The Judges’ Journal, a preeminent publication for American judges, alerts the bench, bar, and policymakers to the rapidly emerging “rights of nature,” predicting that state and federal courts will increasingly see claims asserting such rights. Within the United States, Tribal law has begun to legally recognize the rights of rivers, mountains, and other natural features. Several municipalities across the United States have also acted to recognize the rights of nature. United States courts have not yet addressed the issue, though in 2017, …

Law Library Blog (October 2021): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

The Enemy Is The Knife: Native Americans, Medical Genocide, And The Prohibition Of Nonconsensual Sterilizations, Sophia Shepherd

Michigan Journal of Race and Law

This Article describes the legal history of how, twenty years after the sterilizations began, the U.S. Department of Health, Education, and Welfare, in 1978, finally created regulations that prohibited the sterilizations. It tells the heroic story of Connie Redbird Uri, a Native American physician and lawyer, who discovered the secret program of government sterilizations, and created a movement that pressured the government to codify provisions that ended the program. It discusses the shocking revelation by several Tribal Nations that doctors at the IHS hospitals had sterilized at least 25 percent of Native American women of childbearing age around the country. …

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 piped water …

Unravel Persistent Land Tenure Insecurity Behind Indonesia’S Palm Oil Industry: Study Case Kinipan Indigenous Community In Central Kalimantan., Widya Naseva Tuslian

Indonesia Law Review

This paper argues that legal pluralism within the context of state law contributes to tenure insecurity experienced by indigenous communities behind the palm oil industry in Indonesia. The palm oil industry is an industry that contributes significantly to Indonesia's economy and is a mainstay of national export. However, this industry is also renowned for bringing multidimensional issues such as ecological problems, biodiversity crises, and land conflict with existing inhabitants, particularly indigenous groups. The latter issue is peculiar in Indonesia's palm oil industries as, in many cases, palm oil projects overlapped with indigenous people's forest land or places where they reside. …

Interpreting Undrip: Exploring The Relationship Between Fpic, Consultation, Consent, And Indigenous Legal Traditions, Jeffrey Warnock

Electronic Thesis and Dissertation Repository

This thesis addresses an interpretive question at the heart of the discourse surrounding the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP); the meaning of the principle of Free, Prior, and Informed Consent (FPIC). It argues that interpreting and implementing UNDRIP and specifically the articles requiring FPIC needs to be done in a way that meaningfully engages with and incorporates the laws of Indigenous peoples (Indigenous Legal Traditions or ILTs). This thesis explores why it is essential to discuss UNDRIP through the lens of ILTs, explores the scholarship and major interpretive schools of thought regarding FPIC, and concludes …

Identifying Barriers In Usda Programs And Services; Advancing Racial Justice And Equity And Support For Underserved Communities At Usda, Anne Castle, Heather Tanana, Bidtah Becker, Chelsea Colwyn, Jaime Garcia, Ana Olaya

Utah Law Faculty Scholarship

On July 19, 2021, the U.S. Department of Agriculture (USDA) published a notice in the Federal Register seeking input from the public on how USDA can advance racial justice and equity for underserved communities as part of its implementation of Executive Order 13985. This letter responds to the agency’s request. The United States Department of Agriculture (USDA) provides a number of programs that could improve access to clean drinking water for Tribes. While these programs have improved conditions for some tribes, several barriers exist which prevent Tribes from fully realizing the benefits of these programs. Our comments recommend: (1) removing …

Vecinos Para El Bienestar De La Comunidad Costera V. Ferc, Malcolm M. Gilbert

Public Land & Resources Law Review

The D.C. Circuit Court remanded three Brownsville, TX LNG approval orders to FERC for failing to adequately explain conclusions around environmental justice and climate concerns. The Court ordered FERC to reevaluate whether the projects are in the public interest. The LNG terminals and pipeline will disproportionately impact low-income, minority communities, and substantial greenhouse gas emissions from production and export will contribute to anthropogenic climate change. This case note explores the role that environmental justice and climate change play in federal agency decision-making processes, analyzes the legal framework for the Court's decision, and discusses how the outcome of this litigation could …

Has Federal Indian Law Finally Arrived At “The Far End Of The Trail Of Tears”?, Ann Tweedy

Georgia State University Law Review

This Article examines the United States Supreme Court’s July 9, 2020 decision in McGirt v. Oklahoma, which held that the historic boundaries of the Creek reservation remain intact, and argues that the decision may signal a sea change in the course of federal Indian law of the magnitude of Obergefell v. Hodges in the LGBT rights arena. The Article shows how the opinion lays a very strong foundation for a much-needed return to traditional federal Indian law principles, respectful treatment of tribal governments as a third sovereign in the American system, and an understanding of fairness from the perspective of …

Legal Barriers To Tribal Jurisdiction Over Violence Against Women In Maine: Developments And Paths Forward, Nina J. Ciffolillo

Maine Law Review

After claiming title to the land now widely known as the United States, colonizers and settlers imposed a legal system that denies Indigenous nations agency. The United States government has launched a steady attack on attributes of Tribal sovereignty since its inception. The sexism entangled with colonialism encourages violence against women, and limitations on Tribal jurisdiction leave Indigenous nations without adequate recourse for violence against women on their land. Violence against women has become an epidemic in Indian Country, and most aggressors come from outside the territory. In 2013 when Congress granted tribes limited criminal jurisdiction over nonmembers on Tribal …

Indigenous Reintegrative Shaming: A Comparison Of Indigenous Legal Traditions Of Canada And Braithwaite's Theory Of Reintegrative Shaming, Emily Sinclair

Bridges: An Undergraduate Journal of Contemporary Connections

Upon the arrival of European settlers in Canada, Indigenous legal traditions have continuously been undermined as customary law with an insignificant role in crime prevention and sanctioning. This paper will argue that Indigenous legal traditions deserve a larger role in Indigenous self-governance as their customs demonstrate aspects of crucial crime prevention theories such as Braithwaite’s theory of reintegrative shaming. The interconnection between reintegrative shaming and Indigenous legal traditions pre-contact and post-contact demonstrate concepts of community socialization, informal sanctions and restorative practices that foster the wellbeing of the community, victims and offenders. As such, Braithwaite’s theory demonstrates the importance of each …

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 a vital role to …

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.

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.

Free, Prior, And Informed Consent: A Struggling International Principle, Emily M. Mcculloch

Public Land & Resources Law Review

No abstract provided.