Indigenous, Indian, and Aboriginal Law Commons^™

Advocacy Matters, Richard B. Collins

Publications

The Supreme Court’s 2022 Castro-Huerta decision was wrong on the points it discussed. It was doubly wrong for a reason it ignored. But the latter error was shared because all briefs and the dissenting opinion ignored it as well. The question presented was whether a nineteenth-century federal Indian country statute provided for exclusive federal jurisdiction over interracial crimes, or for concurrent authority with states. The Court held that the statute allowed concurrent jurisdiction. But it ignored the fact that Congress and the Court, until fairly recently, avoided concurrent federal-state jurisdiction over crimes. Had the self-styled originalist Justices taken their theory …

Teaching At The Intersection Of Federal Indian Law And Environmental Law Courses, Mia Montoya Hammersley, Vanessa Ann Racehorse, Heather Tanana, Nadine Padilla, Gerald Torres

Publications

A discussion of the important role of Federal Indian Law in the practice of environmental and natural resources law and guidance on incorporating this intersection into traditional environmental law courses and curricula.

Tribal Health Self-Determination: The Role Of Tribal Health Systems In Actualizing The Highest Attainable Standard Of Health For American Indians And Alaska Natives, Vanessa Ann Racehorse

Publications

In this Article, I explore the concept of Tribal self-determination in the context of systems that serve American Indian and Alaska Native communities. I investigate the vast health disparities that exist in Tribal communities, as well as the history and current legal framework for the provision of health care in Indian Country. Part of this discussion also provides information on the federal laws and policies that have fractured the traditional lifeways of Native communities and contributed to the disparate health outcomes that now exist. I also provide background on the fundamental federal laws and policies, particularly the Indian Self-Determination and …

Indigenous Peoples In International (Treaty) Diplomacy, Kristen A. Carpenter

Publications

International diplomacy has traditionally been considered the exclusive prerogative of states, who engage with each other on matters of peace, conflict, and trade with an eye to national interests and global wellbeing. This is one of a series of works considering "Indigenous Diplomacy"—a practice in which Indigenous Peoples engage with states, as well as other Indigenous Peoples, groups, and individuals in bilateral and multilateral settings, informed by Indigenous values, to advance rights, relationships, and remedies, as well as peace and security. This Article examines one category of Indigenous Diplomacy, namely the diplomatic processes surrounding modern and contemporary international treaties. With …

Federal Indian Law As Method, Matthew L.M. Fletcher

University of Colorado Law Review

No abstract provided.

The Significance Of The Un Declaration On The Rights Of Indigenous Peoples, S. James Anaya

Publications

No abstract provided.

Dissenting Opinion?, Richard B. Collins

Publications

Johnson v. M'Intosh is important for its extensive description of the racist Doctrine of Discovery. But its holding had no bearing on legal rights of American Indian nations. The opinion's articulation of tribal rights to land ownership and retained sovereignty were correctly stated.

Tribal Air, Jonathan Skinner-Thompson

Publications

Prevailing approaches to addressing environmental justice in Indian Country are inadequate. The dual pursuits of distributive and procedural justice do not fully account for the unique factors that make Indigenous environmental justice distinct—namely, the sovereign status of tribal nations and the ongoing impacts of colonization.

This Article synthetizes interdisciplinary approaches to theorizing Indigenous environmental justice and proposes a framework to aid environmental law scholars and advocates. Specifically, by centering Indigenous environmental justice in terms of coloniality and self-determination, this framework can better critique and improve environmental governance regimes when it comes to pollution in Indian Country.

This Article tests that …

A Bold Plan For Saving The Colorado River, Mark Squillace

Publications

No abstract provided.

Visions For The International Decade Of Indigenous Languages 2022-2032, Kristen A. Carpenter, Andrew Cowell, Alexis Palmer

Publications

The United Nations General Assembly recently proclaimed the International Decade of Indigenous Languages ( "IDIL") from 2022-2032 to "to draw attention to the critical loss of indigenous languages and the urgent need to preserve, revitalize and promote indigenous languages and to take urgent steps at the national and international levels." The Decade is an opportunity to expose and address the severe loss of Indigenous Peoples' languages locally, regionally, and globally. It is a chance for the entire world community to gather together and commit to bringing Indigenous languages back from the brink of dormancy or extinction.

“Aspirations”: The United States And Indigenous Peoples’ Human Rights, Kristen A. Carpenter

Publications

The United States has long positioned itself as a leader in global human rights. Yet, the United States lags curiously behind when it comes to the human rights of Indigenous Peoples. This recalcitrance is particularly apparent in diplomacy regarding the United Nations Declaration on the Rights of Indigenous Peoples. Adopted by the United Nations General Assembly in 2007, the Declaration affirms the rights of Indigenous Peoples to self-determination and equality, as well as religion, culture, land, health, family, and other aspects of human dignity necessary for individual life and collective survival. This instrument was advanced over several decades by Indigenous …

The (Un)Just Use Of Transition Minerals: How Efforts To Achieve A Low-Carbon Economy Continue To Violate Indigenous Rights, Kathleen Finn, Christina A.W. Stanton

Publications

No abstract provided.

Rennard Strickland: Legal Historian And Leader, Charles Wilkinson

Publications

No abstract provided.

A Human Rights Approach To Cultural Property: Repatriating The Yaqui Maaso Kova, Kristen A. Carpenter

Publications

No abstract provided.

Indigenous Peoples And Diplomacy On The World Stage, Kristen Carpenter, Alexey Tsykarev

Publications

No abstract provided.

Decolonizing Indigenous Migration, Angela R. Riley, Kristen A. Carpenter

Publications

As global attention turns increasingly to issues of migration, the Indigenous identity of migrants often remains invisible. At the U.S.-Mexico border, for example, a significant number of the individuals now being detained are people of indigenous origin, whether Kekchi, Mam, Achi, Ixil, Awakatek, Jakaltek or Qanjobal, coming from communities in Venezuela, Honduras, Guatemala and other countries. They may be leaving their homelands precisely because their rights as Indigenous Peoples, for example the right to occupy land collectively and without forcible removal, have been violated. But once they reach the United States, they are treated as any other migrants, without regard …

Introduction To The Symposium On The Impact Of Indigenous Peoples On International Law, S. James Anaya, Antony Anghie

Publications

No abstract provided.

Living The Sacred: Indigenous Peoples And Religious Freedom, Kristen A. Carpenter

Publications

No abstract provided.

Implementing The United Nations Declaration On The Rights Of Indigenous Peoples In The United States: A Call To Action For Inspired Advocacy In Indian Country., Kristen Carpenter, Edyael Casaperalta, Danielle Lazore-Thompson

University of Colorado Law Review Forum

No abstract provided.

Decolonization: Treaties, Resource Use, And Environmental Conservation, Gerald Torres

University of Colorado Law Review

No abstract provided.

(Indigenous) Language As A Human Right, Kristen Carpenter, Alexey Tsykarev

Publications

The United Nations General Assembly has proclaimed 2022-2032 as the International Decade of Indigenous Languages. Building on lessons of the International Year of Indigenous Languages of 2019, the Decade will "draw attention to the critical loss of indigenous languages and the urgent need to preserve, revitalize and promote indigenous languages." These actions are necessary, in part, because existing laws and policies have proven inadequate to redress the legacy of state suppression of indigenous languages or ensure nondiscrimination in contemporary usage. In light of the International Year and Decade, this Article explores the rights of indigenous peoples to "use, revitalize, and …

Not Yet America's Best Idea: Law, Inequality, And Grand Canyon National Park, Sarah Krakoff

University of Colorado Law Review

No abstract provided.

Honoring Sally Jewell, Charles Wilkinson

University of Colorado Law Review

No abstract provided.

Not Yet America's Best Idea: Law, Inequality, And Grand Canyon National Park, Sarah Krakoff

Publications

Even the nation’s most cherished and protected public lands are not spaces apart from the workings of law, politics, and power. This Essay explores that premise in the context of Grand Canyon National Park. On the occasion of the Park’s 100th Anniversary, it examines how law — embedded in a political economy committed to rapid growth and development in the southwestern United States — facilitated the violent displacement of indigenous peoples and entrenched racialized inequalities in the surrounding region. It also explores law’s shortcomings in the context of sexual harassment and discrimination within the Park. The Essay concludes by suggesting …

Honoring Sally Jewell, Charles Wilkinson

Publications

No abstract provided.

The Belloni Decision: A Foundation For The Northwest Fisheries Cases, The National Tribal Sovereignty Movement, And An Understanding Of The Rule Of Law, Charles Wilkinson

Publications

Judge Belloni’s decision in United States v. Oregon, handed down a half-century ago, has been given short shrift by lawyers, historians, and other commentators on the modern revival of Indian treaty fishing rights in the Pacific Northwest. The overwhelming amount of attention has been given to Judge Boldt’s subsequent decision in United States v. Washington and the Passenger Vessel ruling by the Supreme Court affirming Judge Boldt. I’m one who has been guilty of that.

We now can see that United States v. Oregon was the breakthrough. In those early days, Judge Belloni showed deep understanding of the two …

Privatizing The Reservation?, Kristen A. Carpenter, Angela R. Riley

Publications

The problems of American Indian poverty and reservation living conditions have inspired various explanations. One response advanced by some economists and commentators, which may be gaining traction within the Trump Administration, calls for the “privatization” of Indian lands. Proponents of this view contend that reservation poverty is rooted in the federal Indian trust arrangement, which preserves the tribal land base by limiting the marketability of lands within reservations. In order to maximize wealth on reservations, policymakers are advocating for measures that would promote the individuation and alienability of tribal lands, while diminishing federal and tribal oversight.

Taking a different view, …

Beyond Vawa: Protecting Native Women From Sexual Violence Within Existing Tribal Jurisdictional Structures, Jessica Allison

University of Colorado Law Review

One in three American Indian women will be raped in her lifetime. This rampant assault is only exacerbated by the fact that tribes have not been able to prosecute non- Indians for any crime, including rape, since the 1970s. The Violence Against Women Reauthorization Act of 2013 took a small step toward filling this jurisdictional hole by creating provisions under which tribes can prosecute certain non- Indian defendants for a limited set of sexual violence crimes. However, VAWA is not enough to protect Indian women from the astronomical rates of violence they experience. This Comment explores mechanisms used by tribes …

Environmental Justice And The Possibilities For Environmental Law, Sarah Krakoff

Publications

Climate change and extreme inequality combine to cause disproportionate harms to poor communities throughout the world. Further, unequal resource allocation is shot through with the structures of racism and other forms of discrimination. This Essay explores these phenomena in two different places in the United States, and traces law’s role in constructing environmental and economic vulnerability. The Essay then proposes that solutions, if there are any to be had, lie in expanding our notions of what kinds of laws are relevant to achieving environmental justice, and in seeing law as a possible tactic for instigating broader social change but not …

Standing Rock, The Sioux Treaties, And The Limits Of The Supremacy Clause, Carla F. Fredericks, Jesse D. Heibel

University of Colorado Law Review

No abstract provided.