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Indigenous, Indian, and Aboriginal Law Commons™
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Articles 1 - 30 of 71
Full-Text Articles in Indigenous, Indian, and Aboriginal Law
The Unilateral Reinterpretation Of The Treaty Of Waitangi: Analyzing The Treaty Principles Bill And Its Impact On Māori Sovereignty, Jason Kehoe
American University International Law Review
This comment examines New Zealand’s compliance with the Treaty of Waitangi and the United Nations Declaration on the Rights of Indigenous Peoples by examining the countries treatment of Māori following the introduction of the Treaty Principles Bill and comparing the nations treatment of these groups to similarly situated nations. This comment analyzes the legal and moral duties imposed by the UNDRIP and ILO Convention 169 and the criticism New Zealand has faced for its pushback against the principles originally enshrined in the Treaty of Waitangi. This comment will first provide background on the treatment of Māori in New Zealand following …
Vulnerability In The Law, Sara Aziz, Aisli Ali, Casey Williams, Lindsey Nye, Saya Khandhar, Sofia Bazdekis
Vulnerability In The Law, Sara Aziz, Aisli Ali, Casey Williams, Lindsey Nye, Saya Khandhar, Sofia Bazdekis
Human Rights Brief
On Monday, February 24, 2025, the Human Rights Brief (“the Brief”) at American University Washington College of Law (“WCL”) held its annual spring symposium with the theme of “Vulnerability in the Law.” This year’s theme aimed to highlight areas where legal systems fall short in protecting vulnerable populations, as well as highlighting where the law itself is vulnerable. The symposium was organized by Symposium and Education Editor Sara Aziz, in collaboration with the Junior Symposium Staff: Asli Ali, Casey Williams, Lindsey Nye, Saya Khandhar, and Sofia Bazdekis. The team worked relentlessly to coordinate panels on legal issues, including technology, environmental …
Reflections On The Launch Of The Inspection Panel And People-Centered Accountability, David B. Hunter
Reflections On The Launch Of The Inspection Panel And People-Centered Accountability, David B. Hunter
Perspectives
No abstract provided.
The Unenforceable Indian Trust, Ezra Rosser
The Unenforceable Indian Trust, Ezra Rosser
Scholarly Articles in Law Reviews & Journals
This Essay explores the Indian trust relationship in light of recent decisions, especially Arizona v. Navajo Nation, that severely limit the judicial enforcement of federal trust responsibilities. Given the built-in tension between the trust responsibility and self-determination, periodic reassessment of the role and power of the Indian trust is perhaps inevitable. The Supreme Court's attack on meaningful enforcement of the trust responsibility is deeply problematic in that it puts tribes in the position of getting neither the benefits of a special Indian trust nor those principles that are supposed to govern trusts in general. But the Court is not …
Criminalizing Ecocide: An Opportunity To Embed The Inseparability Of Humans From Nature Into The Law, Rebecca Hamilton
Criminalizing Ecocide: An Opportunity To Embed The Inseparability Of Humans From Nature Into The Law, Rebecca Hamilton
Scholarly Articles in Law Reviews & Journals
Amid widespread acknowledgment that we live on a planet in peril, the term “ecocide” packs a powerful rhetorical punch. Extant regulatory approaches to environmental protection feel insufficient in the face of the triple threat of climate change, pollution, and biodiversity loss. International criminal prosecution for ecocide, by contrast, promises to meet the moment, and a recent proposal to introduce ecocide into the canon of core international crimes is gaining traction. Assuming the push to criminalize ecocide continues to gain momentum, this Article argues that the primary (and perhaps, sole) benefit that international criminal law can offer in this context is …
Institutions And Economic Development, Ezra Rosser
Institutions And Economic Development, Ezra Rosser
Scholarly Articles in Law Reviews & Journals
INTRODUCTION: Though forty years have passed since the American Indian Law Review published Economic Development in Indian Country: What Are the Questions? by Professor Frank Pommersheim, many of the same challenges and questions about economic development remain. This brief Essay looks back at Pommersheim’s work, surveys the state of scholarship on economic development today, and offers a few ideas about the future of such work. To this day, economic development remains a backwater among law professors compared to sexier topics like criminal jurisdiction, civil authority over nonIndians, and whatever is the most recent opinion from the U.S. Supreme Court. But …
From Alienation To Rootedness: Discrimination Against Indigenous Peoples In The Philippines Through Education, Katrina Isabela F. Blanco
From Alienation To Rootedness: Discrimination Against Indigenous Peoples In The Philippines Through Education, Katrina Isabela F. Blanco
American University International Law Review
This article tackles the existing discrimination against indigenous peoples in the Philippines in law, policy, and practices. This article discusses indigenous peoples in context, the international and domestic legal framework on IP rights, and the legal (and moral) right to education and the right to indigenous education.
Progress And The Taking Of Indigenous Land, Ezra Rosser
Progress And The Taking Of Indigenous Land, Ezra Rosser
Scholarly Articles in Law Reviews & Journals
The taking of Indigenous land in furtherance of other societal goals is so ubiquitous and so fundamental to the American project that sometimes acts of dispossession are not even recognized as such. This Article argues that the generally accepted understanding of Hawaii Housing Authority v. Midkiff, a key case of the American takings law canon, is wrong because it overlooks Native Hawaiian claims to the land taken. Hawai‘i’s Land Reform Act allowed tenants a right to purchase land over the objections of the owner of the underlying property and in Midkiff the U.S. Supreme Court said that states had the …
State Taxing Power Over Tribal Leasing Activity: Balancing Bracker With The Call To Modernize, Caitlyn Lindstrom
State Taxing Power Over Tribal Leasing Activity: Balancing Bracker With The Call To Modernize, Caitlyn Lindstrom
American University Business Law Review
Federal law operates on the premise that state jurisdiction does not interfere with American Indian jurisdiction, and it is generally accepted that states may not tax Indian entities or members. However, the Supreme Court held that there are circumstances in which states may extend taxation onto non-Indians residing on tribal lands. In cases where Indians believe that states are violating legislation or regulations prohibiting state taxation, the Court follows the Bracker balancing test, an interest balancing test that weighs state, federal, and tribal interests. As with most balancing tests, this test lacks strict guidance on how to properly weigh certain …
Response To Conophillips' Opposition To Un Rapporteurs Amicus Brief, William Snape, David Hunter
Response To Conophillips' Opposition To Un Rapporteurs Amicus Brief, William Snape, David Hunter
Amicus Briefs & Court Filings
Defendant-Intervenor ConocoPhillips made a number of incorrect and misleading statements in their opposition to the UN Special Rapporteurs proposed amicus brief. This response explains the relationship of the UN Special Rapporteurs to American University’s Washington College of Law, as well as the employment status of the two attorneys who authored the UN Rapporteurs’ amicus brief.
Natural Law, Assumptions, And Humility, Ezra Rosser
Natural Law, Assumptions, And Humility, Ezra Rosser
Scholarly Articles in Law Reviews & Journals
This review of Natural Property Rights celebrates Eric Claeys’s efforts to resuscitate natural law as a viable approach to property law. Although readers unlikely to be convinced that natural law is the way to best understand property rights, Claeys succeeds in breathing new life into natural law. Natural Property Rights’ emphasis on use as property law’s fundamental value creates space to reconceptualize the rights of property owners and the place of non-owners within a just theory of property rights. The main critiques of Natural Property Rights offered in this review center around the choice to prioritize rights over duties and …
Brief For Amici Curiae Prof. Daniel Mccool, Prof. Ezra Rosser And Prof. David E. Wilkins, In Support Of Respondents, Ezra Rosser, David E. Wilkins
Brief For Amici Curiae Prof. Daniel Mccool, Prof. Ezra Rosser And Prof. David E. Wilkins, In Support Of Respondents, Ezra Rosser, David E. Wilkins
Amicus Briefs & Court Filings
No abstract provided.
Contemporary Tribal Lawyering & Legal Ethics, Murphy Chen
Contemporary Tribal Lawyering & Legal Ethics, Murphy Chen
PEEL Alumni Scholarship
No abstract provided.
The Road To Brackeen: Defending Icwa 2013-2023, Kathryn Fort
The Road To Brackeen: Defending Icwa 2013-2023, Kathryn Fort
American University Law Review
From 2013 to 2023, the Indian Child Welfare Act (ICWA) was challenged in the courts more than the Affordable Care Act. This Article lays out the history of the fight over ICWA from Baby Girl to Haaland, from my perspective as a clinical professor who has been involved with every major ICWA case since 2013, as well as my observations about why ICWA was so vulnerable to an organized litigation attack despite continued bipartisan and widespread support of the law.
Navajo Statehood: From Domestic Dependent Nation To 51st State, Ezra Rosser
Navajo Statehood: From Domestic Dependent Nation To 51st State, Ezra Rosser
Scholarly Articles in Law Reviews & Journals
The Supreme Court’s recent holding in Oklahoma v. Castro-Huerta that “Indian country is part of the State, not separate from the State” is a reminder of tribal sovereignty’s precarious foundation under U.S. law. The Court’s holding not only broke with longstanding precedent regarding the relationship between tribes and states, but it is also incompatible with the lived experience of those living in the Navajo Nation. The Navajo Nation, not the states and not the federal government, has primary responsibility for governing an area roughly the size of West Virginia. Yet most maps of the United States demarcate only state boundaries, …
Brazil’S Violence Against Indigenous Peoples, Andre Taylor
Brazil’S Violence Against Indigenous Peoples, Andre Taylor
Human Rights Brief
Centuries of violence and displacement define the relationship between indigenous peoples and the successive governments of Brazil. As Brazil embarks on a massive expansion of its agribusiness and mining operations, the systemic denial of land rights and illegal economic activity on protected lands has threatened traditional ways of life practiced by indigenous peoples. The most aggressive policy taken by the Brazilian government has involved legitimizing land claims on unregistered ancestral indigenous lands for development, putting 37,800 square miles of territory at risk for exploitation by loggers, ranchers, and farmers.
Legal Issues In Tribal E-Commerce, Adam Crepelle
Legal Issues In Tribal E-Commerce, Adam Crepelle
American University Business Law Review
No abstract provided.
When Your Colonizers Are Hypocrites: Federal Poverty "Solutions" And Indigenous Survival Of Sex Trafficking In Indian Country, Alix Bruce
Celebrating WCL Student Authors
No abstract provided.
A Watershed Moment In The Education Of American Indians: A Judicial Strategy To Mandate The State Of New Mexico To Meet The Unique Cultural And Linguistic Needs Of American Indians In New Mexico Public Schools, Preston Sanchez, Rebecca Blum-Martinez
A Watershed Moment In The Education Of American Indians: A Judicial Strategy To Mandate The State Of New Mexico To Meet The Unique Cultural And Linguistic Needs Of American Indians In New Mexico Public Schools, Preston Sanchez, Rebecca Blum-Martinez
American University Journal of Gender, Social Policy & the Law
No abstract provided.
"Enough's Enough": Protest Law And The Tradition Of Chilling Indigenous Free Speech, Alix H. Bruce
"Enough's Enough": Protest Law And The Tradition Of Chilling Indigenous Free Speech, Alix H. Bruce
Celebrating WCL Student Authors
Indigenous peoples in the United States were not granted the full scope of their rights as citizens under the Constitution until the enactment of the Indian Citizenship Act of 1924. Before that—and after—several state and federal campaigns worked to stifle the civil rights of Indigenous peoples. Many of those unjust and unconstitutional policies were upheld by the Supreme Court. In the current era, the anti-pipeline protests on the edge of the Standing Rock Sioux Reservation in North Dakota sparked a new recognition of Indigenous resistance under the First Amendment—and vicious state and federal backlash against Indigenous free speech via the …
America's Quiet Legacy Of Native American Voter Disenfranchisement: Prospects For Change In North Dakota After Brakebill V. Jaeger, Hannah Stambaugh
America's Quiet Legacy Of Native American Voter Disenfranchisement: Prospects For Change In North Dakota After Brakebill V. Jaeger, Hannah Stambaugh
American University Law Review
No abstract provided.
Reclaiming The Navajo Range: Resolving The Conflict Between Grazing Rights And Development, Ezra Rosser
Reclaiming The Navajo Range: Resolving The Conflict Between Grazing Rights And Development, Ezra Rosser
Scholarly Articles in Law Reviews & Journals
Grazing is fundamental to Navajo identity, yet management of the Navajo range remains highly problematic. This Essay connects the federal government's devastating livestock reduction effort of the 1930s with the inability of the Navajo Nation to place meaningful limits on grazing and the power of grazing permittees. It argues that the Navajo Nation should consider reasserting the tribe's traditional understanding that property rights depend on use as a way to create space for reservation development.
A Watershed Moment In The Education Of American Indians: A Judicial Strategy To Mandate The State Of New Mexico To Meet The Unique Cultural And Linguistic Needs Of American Indians In New Mexico Public Schools, Preston Sanchez, Rebecca Blum-Martinez
A Watershed Moment In The Education Of American Indians: A Judicial Strategy To Mandate The State Of New Mexico To Meet The Unique Cultural And Linguistic Needs Of American Indians In New Mexico Public Schools, Preston Sanchez, Rebecca Blum-Martinez
American University Journal of Gender, Social Policy & the Law
No abstract provided.
Native American Voting Rights: Two Steps Forward, One Step Back, Patrick Roche
Native American Voting Rights: Two Steps Forward, One Step Back, Patrick Roche
American University Journal of Gender, Social Policy & the Law
No abstract provided.
Indian Country And The Territory Clause: Washington's Promise At The Framing, John Hayden Dossett
Indian Country And The Territory Clause: Washington's Promise At The Framing, John Hayden Dossett
American University Law Review
No abstract provided.
The Washington Redskins Case And The Search For Dignity, Victoria Phillips
The Washington Redskins Case And The Search For Dignity, Victoria Phillips
Scholarly Articles in Law Reviews & Journals
INTRODUCTION: For more than sixty years, Native American activists have been involved in discussions and protests over the appropriation and use of tribal references in sports names, logos, and mascots. During this same period, many of these uses have since been changed, driven by civil rights struggles and a growing awareness of the proven social harms and racism inherent in these references. Despite a gradual movement towards abolition and evolving signs of cultural understanding, many mascots invoking Native names and imagery persist today across professional, collegiate, and local school district sports. These mascots and team names, and the trademarks associated …
Registering Offense: The Prohibition Of Slurs As Trademarks, Christine Haight Farley
Registering Offense: The Prohibition Of Slurs As Trademarks, Christine Haight Farley
Contributions to Books
Since 1967, Pro-Football has registered six marks that include the term “redskins,” a derogatory racial epithet that refers to Native Americans. The use of disparaging marks dates back to the 19th century when brands commercialized racial stereotypes, such as Aunt Jemima. Today, offensive marks, including those that ridicule race, ethnicity, gender and religion are proliferating prompting the question of what role trademark law plays in protecting the interests of diverse communities. Section 2(a) of the Lanham Act prohibits the registration of marks that consist of matter that may disparage or bring into contempt or disrepute any person, institution, or belief. …
Registering Offense: The Prohibition Of Slurs As Trademarks, Christine Farley
Registering Offense: The Prohibition Of Slurs As Trademarks, Christine Farley
Contributions to Books
Since 1967, Pro-Football has registered six marks that include the term “redskins,” a derogatory racial epithet that refers to Native Americans. The use of disparaging marks dates back to the 19th century when brands commercialized racial stereotypes, such as Aunt Jemima. Today, offensive marks, including those that ridicule race, ethnicity, gender and religion are proliferating prompting the question of what role trademark law plays in protecting the interests of diverse communities. Section 2(a) of the Lanham Act prohibits the registration of marks that consist of matter that may disparage or bring into contempt or disrepute any person, institution, or belief. …
Political Possibilities Of Reparations, Ezra Rosser
Political Possibilities Of Reparations, Ezra Rosser
Scholarly Articles in Law Reviews & Journals
This essay is a brief response to Gregory Alexander's article, published by Law and Social Inquiry, that generally argues against land reparations for past wrongs. This response argues that there are political reasons to leave land reparations on the table, focusing on the claims of Native American tribes.
Stabilizing Morality In Trademark Law, Christine Haight Farley
Stabilizing Morality In Trademark Law, Christine Haight Farley
Scholarly Articles in Law Reviews & Journals
Almost all of the commentary concerning the statutory prohibition on registering offensive trademarks lambasts it as a misguided attempt to enforce civility through trademark law. This Article carefully considers the challenges accompanying section 2(a) of the U.S. Trademark Act and defends it as good policy. There are, however, a few instances in which the jurisprudence under section 2(a) has created more problems than it has solved. To alleviate these problems, this Article proposes judging words per se and abandoning the traditional trademark notion of evaluating words in context. Judging words per se is warranted given the very different objectives underlying …