Indigenous, Indian, and Aboriginal Law Commons^™

Justice Thomas And Federal Indian Law: Hitting His Stride?, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

It was Justice [Clarence Thomas], the lone African American, whose voting record on Indian cases is more anti-Indian than even Rehnquist or Scalia, who in his concurring opinion, made several critical points that were most telling. Thomas will never be mistaken for Thurgood Marshall, who wrote several affirmative Indian law rulings, and his intention in crafting his opinion in this case was almost certainly not meant to be transparently supportive of tribal sovereignty. Yet he identified several enigmas in law and policy that, if acted upon by tribal, state and federal policymakers, might lead to a clearer status for indigenous …

A Constitutional Confession: The Permanent If Malleable Status Of Indigenous Nations, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

I appreciate the opportunity to address such an august group of students and faculty. When Amy invited me to join you, and she certainly is a very persuasive person, I debated long and hard on what kind of talk to give since I study politics comparatively. Although much of my work is infused with law and history, and a smidgen of culture, economics, and geography, I work largely at the intersection of politics, history and law, and have coined the awkward though accurate term, "Polegalorian," to describe what I do. My research is concerned broadly with how indigenous peoples generate, …

Indigenous Nations As Reserved Sovereigns, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

Some adhere to the idea that the federal government, as a democratic state founded on the rule of law, contains within its legal and political institutions and ideologies a framework that provides the necessary vaccines that will eventually cure the various and sundry indigenous ailments generated throughout American society by its social, economic, political and legal institutions.

By contrast, there are others who vigorously argue that the prevailing institutions of governance and law of the United States are incapable of providing justice to First Nations because they entail systems, ideologies, and values that represent non-Indians and thus they cannot possibly …

The Indigenous Vote: Protecting Or Endangering Sovereignty?, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

Much ado has been made about the 2002 mid-term congressional and gubernatorial elections. Democrats are bemoaning the Republican's treble triumph—congressional control, an invigorated Bush administration, and conservative rule on the supreme court. Republicans are exulting in their perceived conservative mandate—to address the War on Terror, privatize Social Security, and roll back environmental regulations that are deemed overly restrictive of private and public property development. And the inconsistent American voter, depending on race, socio-economic status, and issue salience, seems either unenthusiastic, ambivalent, or wildly animated about politics.

First Nations And States: Contesting Polities, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

The U.S. Supreme Court in an historic case in 1886, U.S. v. Kagama, which devastated tribal sovereignty by affirming the legality of the 1885 Major Crimes Act that problematically extended federal criminal jurisdiction over "all" Indians for seven major crimes—murder, manslaughter, rape, etc., (today that number has increased to 14 crimes)—more accurately declared in that same case that state governments could be characterized as the "deadliest enemies" of indigenous nations.

Native State Lawmakers: Minimizing The Tribal Disadvantage, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

Not surprisingly, most of these lawmakers are serving in western states where more than 80 percent of indigenous peoples live—Alaska is home to 11 Native lawmakers; Montana has elected seven; New Mexico's legislature now has five Indian legislators; Oklahoma, Arizona, and South Dakota each have three Indian representatives; Washington has two; and Colorado and North Dakota have one each. Eastern states also have indigenous representation: Maine has two representatives—a Penobscot and a Passamaquoddy; North Carolina's Lumbee tribe has a member in the state legislature; and Vermont has a lone Native member.

Our preliminary results give us reason to be moderately …

Indigenous Peoples, American Federalism, And The Supreme Court, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

As America breathes a sigh of relief in the afterglow of the pyrotechnics associated with the first post-September 11 July 4, pondering its global status as as the leading agent in its self-­proclaimed "War on Terrorism," and its domestic situation with a "War on Federalism" raging between the Supreme Court's redefined notion of states' rights and federal authority, it seems a propitious time to ask where indigenous nations fit in this warlike atmosphere, given that the history of Indian/U.S. relations involved a fair amount of war-related activities.

Governance Within The Navajo Nation: Have Democratic Traditions Taken Hold?, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

This essay crafts a description and analysis of the political and institutional context, structures, and issues of the Navajo Nation's government. We begin with a demographic, institutional, and ideological assessment of the nation as its currently stands, move to a historical overview of the nation from precontact times to the 1989 riots and conclude with a short policy portfolio of three issues—land claims, gaming, and taxation—that will likely impact the shape and direction the nation will head into the twenty-first century.

[Introduction To] Uneven Ground: American Indian Sovereignty And Federal Law, David E. Wilkins, K. Tsianina Lomawaima

Bookshelf

In the early 1970s, the federal government began recognizing self-determination for American Indian nations. As sovereign entities, Indian nations have been able to establish policies concerning health care, education, religious freedom, law enforcement, gaming, and taxation. Yet these gains have not gone unchallenged. Starting in the late 1980s, states have tried to regulate and profit from casino gambling on Indian lands. Treaty rights to hunt, fish, and gather remain hotly contested, and traditional religious practices have been denied protection. Tribal courts struggle with state and federal courts for jurisdiction. David E. Wilkins and K. Tsianina Lomawaima discuss how the political …

The Manipulation Of Indigenous Status: The Federal Government As Shape-Shifter, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

"The federal-Indian relationship is like no other in the world. Indian tribes are denominated 'domestic-dependent nations' but their practical relationship with the United States 'resembles that of a ward to his guardian.' Indian tribes appear to have the same political status as the independent states of San Marino, Monaco, and Liechtenstein, yet they have little real self-government and seem to be forever mired in a state of political and economic pupilage."

This fifteen-year-old statement from Vine Deloria, Jr., the preeminent Indian political and legal scholar, still accurately reflects the convoluted nature of indigenous political, legal, and economic statuses in the …

Clinton's Legacy On Indigenous Issues, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

The president, of course, has not express constitutional responsibility for Indian nations—that is a power reserved to the Congress under the commerce clause. Nevertheless, it is to the president, dating back to George Washington, who had an active hand in Indian affairs through the treaty process, that tribal nations and their leaders have most often looked to gauge the federal government's character and commitment to fulfill the nation's historic treaty and ongoing trust obligations to indigenous people.

Judicial Terror Confronts Indian Nations, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

As the Bush Administration broadens its constitutionally problematic assault on real and alleged terrorists, both home and abroad, endangering the very rights and liberties it accused Osama bin Laden of savagely attacking, the judicial branch of the government, occupied by a majority of conservative justices, is doing its part to shatter the sovereign rights and economic liberties of indigenous nations.

An Inquiry Into Indigenous Political Participation: Implications For Tribal Sovereignty, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

When we set out to examine the various forms and patterns of indigenous political participation in the three polities they are connected to—tribal, state, and federal—we are stepping into a most complicated subject matter. It is complicated in large part because Indians are citizens of separate extra-constitutional nations whose members have only gradually been incorporated in various ways by various federal policies and day to day interactions with non-Indians. Tribal nations, of course, have never been constitutionally incorporated and still retain their standing as separate political bodies not beholden to either federal or state constitutions for their existence.

A Constitutional Conundrum: The Resilience Of Tribal Sovereignty During American Nationalism And Expansion: 1810-1871, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

Judge Michael Hawkins addresses a number of important issues in his essay on John Quincy Adams' evolving understanding and relationship with slavery and the variegated role that law played in the politics of slavery and the slavery of politics. The essay demonstrates the importance of human personality in influencing and being influenced by political and legal processes. At its heart, the Article is a legal and historical study of the moral dimension and inherent contradictions facing Adams, in particular, and the American Republic, in general, regarding the existence and persistence of the institution of slavery in a nation built upon …

[Introduction To] Tribes, Treaties, And Constitutional Tribulations, Vine Deloria Jr., David E. Wilkins

Bookshelf

"Federal Indian law... is a loosely related collection of past and present acts of Congress, treaties and agreements, executive orders, administrative rulings, and judicial opinions, connected only by the fact that law in some form has been applied haphazardly to American Indians over the course of several centuries.... Indians in their tribal relation and Indian tribes in their relation to the federal government hang suspended in a legal wonderland."

In this book, two prominent scholars of American Indian law and politics undertake a full historical examination of the relationship between Indians and the United States Constitution that explains the present …

The Reinvigoration Of The Doctrine Of Implied Repeals: A Requiem For Indigenous Treaty Rights, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

America's indigenous nations occupy a distinctive political within the United States as separate sovereigns whose rights in the doctrine of inherent tribal sovereignty, affirmed in hundreds of ratified treaties and agreements, acknowledged in the Commerce the U.S. Constitution, and recognized in ample federal legislation case law. Ironically, while indigenous sovereignty is neither ally defined or delimited, it may be restricted or enhanced by One could argue, then, that indeterminacy or inconsistency of the tribal-federal political/legal relationship.

Racial And Ethnic Studies, Political Science And Mid-Wifery, Vine Deloria Jr., David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

One of the major fallacies of Western civilization, according to Alfred North Whitehead,' was the propensity of Western thinkers to assume that ideas generated within their intellectual landscape were indicative of reality itself. Although some phases of Western science, notably physics and philosophy, have transcended their parochial origins, aspects of the old medieval synthesis still remain in the Western worldview. The gradual fragmentation of the old categories of natural history and theology into the isolated sciences and disciplines of today has produced a myriad of separate bodies of knowledge complete with their professional priesthoods and has allowed considerable slippage in …

Tribal-State Affairs: American States As 'Disclaiming' Sovereigns, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

The history of tribal-state political relations has been contentious from the beginning of the republic. As a result of these tensions, the relationship of tribal nations and the federal government was federalized when the U.S. Constitution was ratified in 1788. Thus, a number of states, especially in the West, were required in their organic acts and constitutions to forever disclaim jurisdiction over Indian property and persons. This article analyzes these disclaimer clauses, explains the factors that have enabled the states to assume some jurisdictional presence in Indian Country, examines the key issues in which disclaimers continue to carry significant weight, …

The Indigenous Peoples Of The Usa: Issues And Challenges Of Native Americans, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

Vine Deloria, Jr., the most important Indian chronicler of indigenous political, legal, and religious experience in the U.S. in the last thirty years, noted recently that Indian life, particularly the experience of reservation-based tribal peoples, "has only the slightest resemblance to the conditions of three decades ago, and the current situation has elements of hope and portents of disaster." This observation is even more realistic as we sit at the dawn of the new millennium. The 560 indigenous polities in the U.S.—374 Indian nations, tribes, bands, communities, and Pueblos in the lower 48 states; 226 are Alaska Native villages and …

Will Tribes Ever Be Able To "Trust" Their Federal Trustee?, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

It is widely reported that the federal government has a trust relationship with the Indian peoples of this land, one of the many distinctive features of the indigenous/federal relationship. Despite the importance of this concept, legal and political commentators and, surprisingly, federal policy makers have radically conflicting definitions of what the trust relationship actually means.

Quit-Claiming The Doctrine Of Discovery: A Treaty-Based Reappraisal, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

The discovery doctrine is one of the baseline legal concepts that has worked to seriously disadvantage the land rights of indigenous nations in the United States because it asserts, as one of its definitions, that the "discovering" European nations and their successor states, gained legal title to Indian lands in North America. The author argues, using comparative colonial and early American treaty, legislative, and other historical data, that this definition is a legal fiction. In historical reality, discovery was merely an exclusive and preemptive right that vested in the discovering state the right of first purchase.

[Introduction To] American Indian Sovereignty And The U.S. Supreme Court: The Masking Of Justice, David E. Wilkins

Bookshelf

"Like the miner's canary, the Indian marks the shift from fresh air to poison gas in our political atmosphere and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith, wrote Felix S. Cohen, an early expert in Indian legal affairs.

In this book, David Wilkins charts the "fall in our democratic faith" through fifteen landmark cases in which the Supreme Court significantly curtailed Indian rights. He offers compelling evidence that Supreme Court justices selectively used precedents and facts, both historical and contemporary, to arrive at decisions that have …

"With The Greatest Respect And Fidelity:" A Cherokee Vision Of The "Trust" Doctrine, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

The trust relationship is the conceptual/philosophical framework against which all relations between the federal government and indigenous groups are conducted. Yet despite the centrality of this concept, federal policymakers have no consistent or agreed upon definition of what the trust relationship actually entails. And, more importantly, indigenous conceptions of trust have rarely been assessed. This article analyzes and advances one tribe's—the Cherokee—perspective on trust. In focusing on how the Cherokee perceive trust, this section emphasizes that from an indigenous viewpoint the trust relationship embodies a complex and sophisticated understanding that both the tribe and the United States have reciprocal responsibilities …

Convoluted Essence: Indian Rights And The Federal Trust Doctrine, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

In recent years there has been growing resentment from what one might term, for lack of a better phrase, the "anti-trust" segment. These commentators have offered a host of arguments to support their position: the trust doctrine has been and is still used primarily to "give moral color to depredations of tribes;" it is "an assertion of unrestrained political power over Indians, power that may be exercised without Indian consent and without substantial legal restraint;" and it is really a "metaphor for federal control of Indian affairs without signifying any enforceable rights of the tribal `beneficiaries.'" Yet others suggest that …

The Dominant Society's Judicial Reluctance To Allow Tribal Civil Law To Apply To Non-Indians: Reservation Diminishment, Modern Demography And The Indian Civil Rights Act, Robert Laurence

University of Richmond Law Review

Begin at the beginning: there was a time, not so long ago as such things are reckoned-say, about half as long as there has been a country called Hungary-during which only American Indians lived in and around what is now the Commonwealth of Virginia. A time when Europeans, Africans and Asians were entirely occupied with managing the affairs of Europe, Africa and Asia, to mixed effect. A time when the subject of this article was entirely theoretical; when the question of applying tribal law to non-Indians was answered neither "yes" or "no" but simply did not arise, putting aside the …

Conflicts And Dependant Sovereigns: Incorporating Indian Tribes Into A Conflicts Course, Wendy Collins Perdue

Law Faculty Publications

Professor Perdue describes her use of materials on Indian Tribes at the end of her Conflict of Laws course as a vehicle for examining the interrelations among choice of law, Jurisdiction, and recognition of judgments. Her goal is not to make students experts in Indian law, but rather to get students to reexamine assumptions about the nature of sovereignty and the role of choice of law, jurisdiction, and recognition of judgments as devices for recognizing and allocating governmental authority

Henry Berry Lowry: Champion Of The Dispossessed, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

The nineteenth century stands apart in the minds of indigenous peoples as a period of extreme hardship. Tribes in the first half of this era, were initially victimized by the enactment of devastating "segregation" measures (i.e. the Indian Removal policy and later the Reservation policy). Later in the century, when it was clear that segregation was an insufficient response to intercultural relations, the federal government shifted its powerful attention to a series of overtly ethnocidal "civilization," or better termed, "Americanization" measures. Broadly stated, such measures entailed the cultural assimilation, the spiritual assimilation, and the physical assimilation of indigenous lands and …

Indian Religious Freedom: Recognized/Denied, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

Clinton's sacred site executive order applies to all "federal lands" and to all "recognized" Indian tribes. A "sacred site" is defined as "any specific, discrete, narrowly delineated location of Federal land that is identified by an Indian tribe, or Indian individual... as sacred by virtue of its established religious significance to, or ceremonial use by, an Indian religion; provided that the tribe or appropriately authoritative representative of an Indian religion has informed the agency of the existence of such a site."

The issue that seemed most troublesome from William Downes' legal perspective, besides the alleged Establishment clause violation, was that …

"Constructing" Nation Within States: The Quest For Federal Recognition By The Catawba And Lumbee Tribes, Anne Merline Mcculloch, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

Creating and in some cases re-creating viable tribal political communities within the construct of modern nation-state has proven to be a troublesome task for indigenous populations worldwide. The task for indigenous governments in the United States has been further complication by federalism's divisions of power between the states and the national government. Native American tribes often find themselves waging a two-front battle in which they must resist state encroachments over their lands and their inherent government authority; while at the same time they must lobby the federal government for protection of those same lands and powers.

History is replete with …

The "De-Selected" Senate Committee On Indian Affairs And Its Legislative Record, 1977-1992, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

This essay has three major sections. In section one, I examine the Congress's constitutional responsibility for administration of the federal government's affairs with tribes. In section two, I describe the history of the various Indian committees from 1820 to 1977. Section three details the legislative record of the Senate Select Committee during its sixteen-year existence (1977-1993) as a "select" entity. Substantive policy content analysis of the committee's legislative activity, which is the next logical step leading to the construction of a theory or theories about congressional committees and their impact on the development of sound federal Indian policy, must await …