Indigenous, Indian, and Aboriginal Law Commons^™

Toward A Pedagogy And Ethic Of Law/Lawyering For Indigenous Peoples, Christine Zuni Cruz

Faculty Scholarship

This article is prefaced with a reflection on Indigenous Peoples in the legal profession which leads into a discussion on the pedagogy and preparation of Indigneous students in law. It addresses the current pedagogy employed in training indigenous students in law and proposes a reframing of this preparation by including and employing an indigenous perspective and intellectual tradition of leadership. It considers the relationship of the Indian law academician with indigenous justice systems. The article addresses the influence on pedagogy that emerges from the Indigenous legal tradition, and the importance of incorporating these influences into the education and preparation of …

American Indians, Crime, And The Law, Kevin Washburn

Faculty Scholarship

This Article evaluates the federal Indian country criminal justice regime, not against norms of Indian law and policy, but against those of criminal law and policy. Specifically, this Article evaluates the federal constitutional norms that lie at the heart of American criminal justice and that are designed to ensure the legitimacy of federal criminal trials. Toward that end, Part I presents a critical description of key facets of the federal Indian country criminal justice system. Part II begins the critical evaluation by evaluating a key institutional player in the federal system, the federal prosecutor. It highlights the handicaps faced by …

2005 Amended And Restated Gila River Indian Community Water Rights Settlement Agreement, Gila River Indian Community, Et Al

Native American Water Rights Settlement Project

Settlement Agreement: Amended and Restated Gila River Indian Community Water Rights Settlement Agreement (Oct. 21, 2005). Parties: Gila River Indian Community; US; AZ; Salt River Project Agricultural Improvement and Power District; Salt River Valley Water Users' Association; Roosevelt Irrigation District; Roosevelt Water Conservation District; Arizona Water Company; the Arizona cities of Casa Grande, Chandler, Coolidge, Glendale, Goodyear, Mesa, Peoria, Phoenix, Safford, Scottsdale, and Tempe; the Arizona towns of Florence, Mammoth, Kearny, Duncan and Gilbert; Maricopa-Stanfield Irrigation & Drainage District; Central Arizona Irrigation & Drainage District; Franklin Irrigation District; Gila Valley Irrigation District, San Carlos Irrigation & Drainage District; Hohokam Irrigation …

Testimony On The Regulation Of Indian Gaming, Oversight Hearing On Indian Gaming, Before The United States Senate, Committee On Indian Affairs, 109th Congress, 1st Session, Kevin Washburn

Faculty Scholarship

Federal and tribal regulation is likely to be more successful than state regulation of Indian gaming because tribal governments and the federal government have a greater interest in the long term success of Indian gaming. Uniform federal minimum internal control standards can protect the integrity of the Indian gaming industry nationwide. While federal regulators should exercise a powerful role, they must be respectful of tribal governments.

Testimony On The Regulation Of Indian Gaming, United States Senate, Committee On Indian Affairs, 109th Congress, 1st Session, Kevin Washburn

Faculty Scholarship

Congress must shore up NIGC regulatory authority over Class III gaming, guard against regulatory capture in tribal regulatory commissions, and reconsider the legitimacy of federal oversight of tribal economic decision-making. Congress should give the NIGC greater authority over licensure of those involved in Indian gaming and circumscribe the federal role over tribal economic decisions.

Debacle In Dixie: A Story Of Six Rivers, Three States, Two Compacts And One Well-Paved Path, George William Sherk

Publications

No abstract provided.

Delawate River Basin Compact, Jeffrey Featherstone

Publications

No abstract provided.

Reconsidering The Commission’S Treatment Of Tribal Courts, Kevin Washburn

Faculty Scholarship

Since the U.S. Sentencing Commission first enacted the federal Sentencing Guidelines, the Guidelines have treated tribal courts in a manner that is impossible to reconcile with other modem federal policies of respect for tribal self-determination and self-governance. In refusing to count tribal convictions for purposes of routine calculation of criminal history, the Commission has disrespected tribal courts. The Commission's tribal courts policy is anachronistic and out of step with modem efforts to support tribal courts. The Commission should amend the guidelines to reflect the principle that misdemeanor convictions from tribal courts are entitled to the same level of respect as …

Cohen's Handbook Of Federal Indian Law, Barbara L. Creel, Gloria Valencia-Weber, Christine Zuni Cruz, Kenneth Bobroff, Kevin Washburn, John Lavelle

Faculty Book Display Case

Cohen's Handbook of Federal Indian Law is an encyclopedic treatise written by experts in the field, and provides general overviews to relevant information as well as in-depth study of specific areas within this complex area of federal law. This is an updated and revised edition of what has been referred to as the ""bible"" of federal Indian law. This publication focuses on the relationship between tribes, the states and the federal government within the context of civil and criminal jurisdiction, as well as areas of resource management and government structure.

This compact publication is the only comprehensive treatise explicating one …

Four Questions On Critical Race Praxis: Lessons From Two Young Lives In Indian Country, Christine Zuni Cruz

Faculty Scholarship

The Critical Race Lawyering Symposium in New York City brings me from Albuquerque, New Mexico. As I travel the day before the symposium, I reflect on the amount of time it will take. I leave Albuquerque at 8:23 a.m. and I am scheduled to arrive in New York City at 4:05 p.m., via Chicago. Given the two-hour time difference between the East Coast and the Rocky Mountain regions, I begin my day boarding the plane as the sun is rising in the morning sky and end it at my destination where the sun is setting. Even in this day and …

Gila River Indian Community Water Rights Settlement Act Of 2004, United States 108th Congress

Native American Water Rights Settlement Project

Federal legislation: Gila River Indian Community Water Rights Settlement of 2004 as Title II found in the Arizona Water Settlement Act of 2004. Title I reallocates 28,200 acre-feet of CAP agricultural priority water; amends the Colorado River Basin Project Act re Lower Colorado River Basin Development Fund making $53M available for the Gila River Indian Community Water OM&R Trust Fund. Title II ratifies the Gila River Indian Community Water Rights Settlement of Feb. 4, 2003. The Secretary will comply with National Environmental Policy Act in executing the Agreement and Reclamation is the lead agency for compliance. The DOI Secretary shall …

Az Water Rights Settlement Act Of 2004, United States 108th Congress

Native American Water Rights Settlement Project

Federal Legislation: San Carlos Apache Tribe Water Rights Settlement (negotiations assistance) Act of 2004, Title IV of AZ Water Settlement of 2004, PL 108-451, 118 Stat. 3478, 3573 (Dec. 10, 2004) Parties: San Carlos Apache Tribe & US. Certain provisions in Titles I-III relate to water for the Tribe if settlement is reached and other matters. This Act provides funding for the San Carlos Apache Tribe Water Rights Settlement negotiations. For three years, the DOI Secretary shall submit an annual report to Congress describing the status of efforts to negotiate an agreement covering the Gila River water rights with Tribe. …

Az Water Rights Settlement Act Of 2004, United States 108th Congress

Native American Water Rights Settlement Project

Federal Legislation: Central AZ Project Settlement of 2004 - (Sec. 103) Parties: Tohono O'Odham Tribe & US Sets forth general permissible uses of the Central AZ Project (CAP), including for domestic, municipal, fish and wildlife, and industrial purposes. The DOI Secretary will reallocate 197,500 acre-feet of agricultural priority water made available pursuant to the AZ Water Settlement for use by AZ Indian tribes, of which: (1) 102,000 acre-feet shall be reallocated to the Gila River Indian Community; (2) 28,200 acre-feet shall be reallocated to the Tohono O'odham Nation (formerly the Papago Tribe); and (3) 67,300 acre-feet shall be reallocated to …

Az Water Rights Settlement Of 2004, United States 108th Congress

Native American Water Rights Settlement Project

Federal Legislation: White Mountain Apache Tribe Water Rights Settlement Assistance Provisions of 2004, Sec. 403 of AZ Water Settlement of 2004, PL 108-451, 118 Stat. 3478, 3573 (Dec. 10, 2004) Parties: San Carlos Apache Tribe & US. WHITE MOUNTAIN APACHE TRIBE.—The Section authorizes an appropriation to assist the White Mountain Apache Tribe in completing comprehensive water resources negotiations leading to a comprehensive water settlement for the Tribe, including soil and water technical analyses, legal, paralegal, and other related efforts, $150,000 for fiscal year 2006. [Source: http://www.gpo.gov/fdsys/pkg/PLAW-108publ451/pdf/PLAW-108publ451.pdf]

Nez Perce Tribe - Snake River Water Rights Act Of 2004, United States 108th Congress

Native American Water Rights Settlement Project

Federal Legislation: TITLE X--Snake River Water Rights Act of 2004, Consolidated Appropriations Act of 2005 PL 108-447, 118 Stat. 2809 (Dec. 8, 2004). Parties: Nez Perce Tribe, US, ID. The Agreement or "Mediator's Term Sheet" was entered in on April 20, 2004 and resolves the Nez Perce Tribe's water rights claimed in the Snake River Basin adjudication in Idaho.

Water Conservation Plan, Rocky Boy / North Central Montana Regional Water System (2004), Hkm Engineering

Native American Water Rights Settlement Project

Tribal Water Code: Water Conservation Plan, Rocky Boy / North Central Montana Regional Water System (Sep. 2004). Parties: Chippewa-Cree Tribe and NCM-RWS. The Rocky Boy/North Central Montana Regional Water System Act of 2002 (Pub. L. 107-331) authorized construction of the Rocky Boy/North Central Montana Regional Water System in north-central Montana. To meet the requirements of the Act, the Chippewa Cree Tribe and the North Central Montana Regional Water Authority developed and submitted a water conservation plan to Reclamation. The purpose of this water conservation plan is to ensure that users of water from the core system, non-core system and the …

Amendment No. 1 To The Zuni Indian Tribe Water Rights Settlement Agreement In The Little Colorado River Basin, Zuni Indian Tribe Et Al

Native American Water Rights Settlement Project

Settlement Agreement: Zuni Indian Tribe Water Rights Settlement in the Little CO River Basin Amendments 1 (July 8. 2004) Parties: Zuni Indian Tribe, US, AZ, AZ Game & Fish Commission, AZ State Land Department, AZ State Parks Board, St. Johns Irrigation & Ditch Co., Lyman Water Co., Round Valley Water Users’ Ass’n, Salt River Project Agricultural Improvement & Power District, Tucson Electric Power Co., City of St. Johns, Town of Eagar, and Town of Springerville. These Amendments are taken to conform the Settlement Agreement of 2002 to the Settlement Act of 2004. The amendments relate to changes to dates and …

Special Master's Term Sheet For Nez Perce Tribe Water Rights, Nez Perce Tribe, Usa, Idaho

Native American Water Rights Settlement Project

Settlement Agreement aka Special Master's Term Sheet, found as 1) an attachment to the Joint Status Report on Settlement Efforts and Motion for Stay, and 2) as Attachment 2 to the Consent Order entered on 1-30-2007. Parties: Nez Perce Tribe, ID, Idaho, US, United States. Agreement includes

Nez Perce Tribal Component: on-reservation consumptive use reserved water rights at 50,000 acre-feet/year with priority date of 1855. Allowed uses include irrigation, DCMI, hatchery and cultural uses. Tribe will administer on reservation rights pursuant to a tribal water code. Renting of water within the state is allowed. US will establish a $50 million, …

Law Applicable To Quantification Of Santa Ana Pueblos' Water Rights, Herbert A. Becker

Law of the Rio Grande

No abstract provided.

Evidentiary Requuirements For Quantification Of Santa Ana Pueblo Water Rights, Herbert A. Becker

Law of the Rio Grande

No abstract provided.

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 …

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 …

Santa Clara Pueblo V. Martinez: Twenty-Five Years Of Disparate Cultural Visions An Essay Introducing The Case For Re-Argument Before The American Indian Nations Supreme Court, Gloria Valencia-Weber

Faculty Scholarship

Santa Clara Pueblo v. Martinez nakedly presents a conflict between the individual rights norm of equality and the communal or collective political right of the first sovereigns within U.S. borders. The conflict underlies the discourse in law scholarship and reflects disparate cultural visions between mainstream society and American Indians. In Indian law the decision has saliency with positive and negative force injected into different arenas besides equal protection, gender, and membership qualifications. It is a major fortification for the federally recognized tribal sovereigns to exclude external law and forums, the federal law and courts, in how tribes exercise self-government. The …

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 …

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?

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 …

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 …

The Mechanics Of Indian Gaming Management Contract Approval, Kevin Washburn

Faculty Scholarship

The National Indian Gaming Commission's management contract review process is complicated, time-consuming and governed by detailed regulations. This article explains how the process actually works within the Commission and addresses some of the common issues that arise.

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".

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 …