Indigenous, Indian, and Aboriginal Law Commons^™

Does The Right To Counsel On Appeal End As You Exit The Court Of Appeals?, Nancy P. Collins

Seattle Journal for Social Justice

No abstract provided.

Improving Access To Justice: Plain Language Family Law Court Forms In Washington State, Charles R. Dyer, Joan E. Fairbanks, M. Lynn Greiner, Kirsten Barron, Janet L. Skreen, Josefina Cerrillo-Ramirez, Andrew Lee, Bill Hinsee

Seattle Journal for Social Justice

No abstract provided.

Congress' Encroachment On The President's Power In Indian Law And Its Effect On Executive-Order Reservations, Mark R. Carter Jd, Phd

Seattle Journal for Social Justice

No abstract provided.

A Story Of Marguerite: A Tale About Panis, Case Comment, And Social History, Signa A. Daum Shanks

Articles & Book Chapters

Those interested in social history contend that social norms deserve attention due to how they impact and are affected by historical events. This subfield has contributed significantly to how larger historical mosaics are understood, and how themes specific to marginalized groups are appreciated today. By presenting the story of enslaved Indigenous woman in New France who was the first Indigenous civil litigant in Canadian history, and focusing on her representation in the colonial legal system, a number of themes emerge. Canada’s history of slavery becomes better understood, and in so doing, a challenge to social historians is presented. By examining …

The Human Rights Of Indigenous Peoples: United Nations Developments, S. James Anaya

Publications

No abstract provided.

To Return From Where We Started: Revisioning Of Property, Land Use, Economy, And Regulation In America, John W. Ragsdale Jr

Faculty Works

No abstract provided.

Acequias, Brigette Buynak, Jerold Widdison, Darcy S. Bushnell

Water Matters!

Acequias are community irrigation systems in the villages and pueblos of New Mexico. They have deep roots in two ancient traditions—Pueblo Indian and Spanish. The Pueblos collected and shared water for centuries before the arrival of Spanish colonists in 1598. The Spanish settlers brought technical knowledge and institutional frameworks for governing irrigation systems, which originated in the Moors’ seven-century occupation of Spain. Both traditions remain important to an understanding of New Mexico’s acequia heritage and the continuing relevance of these “water democracies.”Today, these traditions must meld with state law as the legislature has provided that acequias are “political subdivisions” or …

American Indian Water Rights, Michael Osborn, Darcy S. Bushnell

Water Matters!

Pueblos and tribal reservations are located within most of the larger stream systems in New Mexico. Each has claims to rights to use the water in its stream. In New Mexico, Indian rights are significant because of their early priority dates, because of the large amounts of water rights claimed, or both. In some instances, such claims have the potential to displace a significant number of junior water rights.

Common law theories or doctrines pertaining to Indians continue to be judicially refined and to evolve so that discussing the nature and extent of “Indian water rights” is a complex topic.

Groundwater, Darcy S. Bushnell, Diego Urbina

Water Matters!

Since the late nineteenth century, New Mexicans have been developing the state’s groundwater resources. From hand-dug wells to proposed wells that could penetrate to 12,000 feet, residents have sought sources to supplement and replace surface water. The state relies upon groundwater to supply almost 50 percent of its needs.

As the population grows and drought intensifies, groundwater sources are tapped with increasing urgency. Limited steps are being taken to preserve groundwater through conservation, groundwater recharge, and regulation.

State And Regional Water Planning, Brigette Buynak, Susan Kelly, Sarah Armstrong

Water Matters!

A statewide water planning effort was initiated by the New Mexico legislature in the 2003 session. The Interstate Stream Commission (ISC),in collaboration with the Office of the State Engineer (OSE) and the Water Trust Board, was tasked with preparing and implementing a comprehensive state water plan. Regional water planning had begun much earlier, prompted by a lawsuit that El Paso filed against New Mexico in 1983, El Paso v. Reynolds.

The State Water Plan Act of 2003 (Act) was intended to promote stewardship of the state’s water resources and to establish clear policies and strategies for management of the state’s …

Community Water Systems, Joanne Hilton, Susan Kelly, Sarah Armstrong

Water Matters!

Apart from the major cities along the Rio Grande corridor, much of New Mexico remains relatively rural. Recent studies estimate a 2013population of around 2,085,500 statewide. In the state fiscal year 2011,about 1,836,000 people, or 88 percent of New Mexico’s population obtain their water from community water systems. Approximately 284,000 people, or about14 percent of the population, receive their drinking water from community water systems serving fewer than 5,000 people. As of 2012, there are 1,148 public water systems that provide drinking water in New Mexico. Of these systems, 593are community water systems; of these, 546 serve fewer than 5,000 …

Deep Water Regulation, Paul Bossert, Kari Olson

Water Matters!

With most of the surface water in New Mexico fully appropriated and with groundwater sources being drawn down and becoming less reliable, the search for new sources of water is reaching further and further afield of traditional sources and methods. Water wells deeper than 2,000 feet have been rare due to the expense of deep drilling and the uncertainty of finding potable water. Yet the combined circumstances of advances in hydrology and the escalating demand for new water have driven the search for water deeper than was previously considered practical.

Water Marketing, Jeremy Oat, Laura Paskus

Water Matters!

Water doesn’t just flow around New Mexico in streams and rivers: it also moves around on paper. Since all of the state’s surface-water and most of its groundwater have already been allocated, the only way for cities, developers, or conservation organizations to find new water supplies is to buy and transfer water rights from old uses and places to new uses and places. The N.M. Office of the State Engineer (OSE) approves each of these transfers, most of which are relatively small, but the numbers can add up over time. Between 1982 and 2011, for instance, 21,000 acre-feet of Middle …

Water Quality Regulation, Joanne Hilton, Susan Kelly, James Hogan, Kimberly Kirby, Jerry Schoeppner

Water Matters!

While many of the water issues in New Mexico center around having an adequate supply of water, the quality of the water is just as important as the quantity in supplying water for drinking and other uses that rely on clean water. Protecting water quality is financially more feasible than conducting expensive cleanup programs. New Mexico has a strong interest in water quality regulation to protect public health and the environment and to minimize expenditures for mitigation of contaminated supplies. Water quality is a difficult subject to navigate; there is a complex web of statutes and agency involvement. This paper …

Water Litigation In The Lower Rio Grande, Darcy S. Bushnell

Water Matters!

The water allocation issues are hotly contested in south-central New Mexico and the surrounding area. Today, the river and those who depend on it face more administrative challenges in the face of shrinking water supplies and increased population. These challenges have given rise to two ongoing lawsuits: the Lower Rio Grande Adjudication,New Mexico v. EBID, et al., 96-CV-888 (1996) (N.M. v. EBID) in the New Mexico Third Judicial District Court (adjudication court) and the New Mexico v. United States,et al., D.N.M. 11-CV-691 (2011) (N.M. v.U.S.) in United States District Court of New Mexico (U.S. District Court).

Eastern New Mexico Rural Water System (Ute Pipeline Project), Jerold Widdison, Paul Van Gulick, Darcy S. Bushnell

Water Matters!

The Ute Pipeline Project (Project), officially known as the Eastern New Mexico Rural Water System (ENMRWS),is a 151-mile-long pipeline project to provide a sustainable municipal and industrial water supply for several eastern New Mexico communities and a military base. The Congress authorized major federal funding for the Ute Pipeline in the Omnibus Public Land Management Act of 2009. This important milestone for the project was reached after about 45 years of effort.Attention now shifts to myriad details involved in actually constructing, financing,and administering the project.

The Rio Grande As An International River, Margaret J. Vick

Water Matters!

The Rio Grande is divided into two major river reaches and has different legal regimes for each. New Mexico is primarily concerned with the Rio Grande from the headwaters in Colorado to Ft. Quitman in Texas, a distance of approximately 670 miles. This section of the river is the subject of the1906 Rio Grande Convention (Treaty) between the United States and Mexico. The lower section of the Rio Grande from Ft. Quitman to the Gulf of Mexico is the subject of the 1944 Rivers Treaty between the United States and Mexico; the 1944 Rivers Treaty also includes the Colorado and …

Never Construed To Their Prejudice: In Honor Of David Getches, Richard B. Collins

Publications

This article reviews and analyzes the judicial canons of construction for Native American treaties and statutes. It discusses their theoretical justifications and practical applications. It concludes that the treaty canon has ready support in contract law and the law of treaty interpretation. Justification of the statutory canon is more challenging and could be strengthened by attention to the democratic deficit when Congress imposes laws on Indian country. Applications of the canons have mattered in disputes between Indian nations and private or state interests. They have made much less difference, and have suffered major failings, in disputes with the federal government. …

Making Peace The Old Fashioned Way: Infusing Traditional Tribal Practices Into Modern Adr , Matt Arbaugh

Pepperdine Dispute Resolution Law Journal

Native Americans have their own unique traditional method of resolving disputes. Their processes, called peacemaking by some tribes, place the emphasis not on the guilt of the wrongdoer, but on restoring relationships and finding a solution that is amenable to all involved. This emphasis on saving the relationship has many similarities to current practices of mediation. Among the similar goals between mediation and peacemaking are the use of ADR allows both sides to reach a better conclusion and the desire to spend less money and to satisfy more people. However, this approach has critics who see it as another attempt …

Mrs. Dred Scott: A Genre Bender?, Lolita Buckner Inniss

Publications

No abstract provided.

Heeding The Clarion Call For Sustainable, Spiritual Western Landscapes: Will The People Be Granted A New Forest Service?, Charles Wilkinson, Daniel Cordalis

Publications

No abstract provided.

Review Of Compact, Contract, Covenant: Aboriginal Treaty Making In Canada. By J.R. Miller., Sidney L. Harring

Great Plains Research: A Journal of Natural and Social Sciences (through 2013)

In Canada, the term First Nations explicitly recognizes a nation-to-nation relationship between the Crown and the original inhabitants of North America that requires treaty making as the primary political and legal process for the taking of Indian lands and the incorporation of Indian nations into the multinational Canadian state. There are great political difficulties embodied in this process, including the continued impoverishment and marginalization of the First Nations, and the repeated failure of successive Canadian governments to carry out their responsibilities under these treaties, but the treaty process remains the required process. J.R. Miller, perhaps Canada's leading scholar of Aboriginal …

New Mexico’S Major Reservoirs: An Overview, Susan Kelly, Diego Urbina

Water Matters!

This paper describes the salient facts about the major water storage reservoirs in New Mexico. For each reservoir, we address the purposes of water storage allowed by law, storage capacity, the responsible operating agency, and some key operational issues. This is by necessity a vast simplification of the topic.Books, articles, research reports, operation manuals, and other materials on these topics run into the hundreds. Millions of dollars have been spent on technical studies and computer models to understand,and sometimes alter, the operations of various dams and reservoirs.

Williams V. Lee And The Debate Over Indian Equality, Bethany R. Berger

Michigan Law Review

Williams v. Lee (1959) created a bridge between century-old affirmations of the immunity of Indian territories from state jurisdiction and the tribal self-determination policy of the twentieth century. It has been called the first case in the modern era of federal Indian law. Although no one has written a history of the case, it is generally assumed to be the product of a timeless and unquestioning struggle of Indian peoples for sovereignty. This Article, based on interviews with the still-living participants in the case and on examination of the congressional records, Navajo council minutes, and Supreme Court transcripts, records, and …

The Reconciliation Doctrine In The Mclachlin Court: From A “Final Legal Remedy” To A “Just And Lasting” Process, Constance Macintosh

Articles, Book Chapters, & Popular Press

The issue upon which this paper focuses is one that runs through much of the Aboriginal rights jurisprudence over the last ten years: the idea of “reconciliation." However, the way in which the term is deployed, the values that inform it, the logic that drives it, and the conclusions that it supports have shifted and are continuing to shift. There are considerable differences between how this term was used at the time of Lamer C.J., its meaning for the bench under McLachlin C.J., and the new role it has evolved to take on most recently. In particular, reconciliation has come …

The Existential Subject Of Rights And Private Law: The Example Of The Indian Issue In Brazil, Jose Carlos Moreira Da Silva Filho

Nevada Law Journal

The issue of the juridical subject has been a topic of discussion as part of the rethinking of the classical jurisprudential concepts in Brazil. In particular, some authors have written about the “repersonalization of private law.” This has opened a promising path of inquiry regarding the legal subject for at least four major reasons. First, continental private law is the classical field to discuss the subject of rights. Second, the focus of private law remains the concept of the person, opening an important space to recover the moral philosophy in law. Third, the repersonalization of private law demonstrates the necessity …

The Last Indian Raid In Kansas: Context, Colonialism, And Philip P. Frickey's Contributions To American Indian Law, Sarah Krakoff

Publications

To many, American Indian law is a remote and anomalous area of the law. To others, including Professor Phil Frickey, themes in American Indian law are central to our identity as a nation, and lessons from the field inform broader understandings of the competencies and limitations of the federal judiciary. One of Professor Frickey’s recurring scholarly arguments is that the federal courts are most within their areas of institutional competence when they approach contemporary Indian law questions as structural disputes between sovereigns, rather than as individual conflicts amenable to the application of mainstream public law values. An event described as …

Values In Transition: The Chiricahua Apache From 1886-1914, John W. Ragsdale Jr

Faculty Works

No abstract provided.

Land Use And Water Supply, Susan Kelly, Joanne Hilton

Water Matters!

As New Mexico grows and develops, there is a continuing increase in water demand and the need to provide additional supplies. Recent studies estimate the current population of the State to be about two million people, and the population is expected to grow to approximately 3,400,000 by 2050. Regional water plans project water demands for 16 regions within New Mexico. The total projected new water use associated with population growth—the public water supply and associated commercial sectors, exclusive of agriculture, mining, or other industries—ranges from 280,000 to 380,000 acre-feet per year of new water supply needed in the next 40 …

Worcester V. Georgia: A Breakdown In The Separation Of Powers, Matthew L. Sundquist

American Indian Law Review

No abstract provided.