Indigenous, Indian, and Aboriginal Law Commons^™

Cultivating Native Intellect And Philosophy: A Community Symposium, Tribal Law Journal

Tribal Law Journal

Cultivating Native Intellect and Philosophy: A Community Symposium Recognizing and Discussing the Contributions of Christine Zuni Cruz was the title of a March 10 symposium at the University of New Mexico School of Law.

Zuni Cruz's work was discussed in two panel discussions, which focused on Native thought and philosophy in tribal courts and community lawyering.

Restorative Justice In Traditional Pre-Colonial 'Criminal Justice Systems' In Kenya, Sarah Kinyanjui

Tribal Law Journal

Traditional African communities are often said to have embraced restorative values in resolving conflicts and responding to wrongdoing. Through empirical research and analysis of secondary data on the pre-colonial traditional Kamba, Kikuyu and Meru communities in Kenya, this article illustrates how penal practices in these communities embraced restorative justice as understood today. This genealogy of restorative justice in these communities demonstrates the potential of restorative justice as an intervention in crime and its role in meeting overall community goals. By doing so, the genealogy challenges the objectification of retributive justice in modern criminal justice systems, which renders retributive practices as …

Australian Aboriginality And Sociobiology, Allan Ardill

Tribal Law Journal

“It has been argued elsewhere that the colonization, dispossession, and oppression of indigenous Australians have a close nexus with biological determinism, scientific racism, and the ideology known as sociobiology. In the United States similar arguments are made concerning the historic maltreatment meted out to African Americans. In Australia, the concern is with the continuing colonial control over the identity of Australian Aboriginal people.” In his essay Dr. Ardill explores indigenous Australian identity and its “reciprocal relationship with health, education, poverty, (loss of) language, native title, sovereignty and self-determination.” He argues “that the legal reasoning underpinning colonial control over Aboriginal identity …

Southern Ute Tribal Profile, Michael J. Anaya

Tribal Law Journal

An overview of the internal laws of the Southern Ute Tribe.

Indigenous Legal Traditions, Cultural Rights, And Tierras Colectivas: A Jurisprudential Reading From The Emberá-Wounaan Community, Lauren Koller-Armstrong

Tribal Law Journal

This paper provides an overview of the Emberá-Wounaan indigenous group of Panama in the context of its legal traditions, worldview, and socio-political organization. In addition, this work examines how overlapping systems of tribal law and national Panamanian law have shaped 1) the tribe's geographic boundaries; and 2) environmental management in tribal communities

Shadow War Scholarship, Indigenous Legal Tradition, And Modern Law In Indian Country, Christine Zuni Cruz

Tribal Law Journal

In this essay, Tribal Law Journal Editor-in-Chief Zuni Cruz comments on the purpose of the Tribal Law Journal. She borrows the term "shadow war" from the Zapatistas' use of the Internet as she describes the Journal's endeavor to make Indigenous law explicit and to promote mental sovereignty. She challenges and invites others who write about the law of Indigenous Peoples to join in making legal scholarship in this area accessible to the public, especially the Indigenous public, and to create a depository of thought, rejecting the scattering of thought, by publishing legal scholarship in the global, publicly accessible e-journal, that …

Toda Cambia Y Todo Sigue Siendo Igual (The More Things Change, The More The Stay The Same): How Fifteen Years Later The Constant Threat Of An End To The Zapatistas Continues To Justify Their Means, Pamela Genghini Hernandez

Tribal Law Journal

This article gives a chronological account of the events pre-dating the uprising of January 1, 1994 and the Zapatista struggle through the years. The author examines these events in light of indigenous self-determination, taking into consideration conditions within Mexico, to defend the course of action taken by the EZLN as a means of creating a space for themselves within Mexican society. The author argues the current state of federal Mexican law and international law do not leave Indigenous Peoples, including the EZLN, viable options for resolving injustices committed against them. She also provides an overview of the structure that the …

The Xhosa And The Truth And Reconciliation Commission: African Ways, Douglas H.M. Carver

Tribal Law Journal

The author begins by providing a conceptual framework for indigenous people generally and then focuses on indigenous people in South Africa. Mr. Carver then discusses the culture and customs of the Xhosa, one of the main ethnic groups from the Republic of South Africa. He then discusses the Truth and Reconciliation Commission (TRC), set up in South Africa after the fall of the apartheid regime, which was meant to rebuild a society divided by racial and ethnic lines. The author explains how the Xhosa concept of "ubuntu" – encompassing African concepts of justice, harmony and reconciliation — became a core …

Indian Law Clinics And Externship Symposium Roundtable Discussion: Lawyering For Indigenous People, Tribal Law Journal

Tribal Law Journal

Several native and non-native Indian Law clinicians and scholars participated in a roundtable discussion on June 22, 2007 in Albuquerque, New Mexico to discuss lawyering for indigenous people. The attendees were organized into three different groups: discussants, respondents, and participants. The discussants began the dialogue and discussed their experiences in representing tribes to representing individual native clients in various areas of law. They discussed what it means as a lawyer "to do no harm" and their roles and challenges in teaching students how to serve native populations. The respondents provided their responses to the various topics presented by the discussants. …

Poetry, Law, & Poetry: Some Notes Toward A Unified Theory, Frank Pommersheim

Tribal Law Journal

This work is a beautiful and profound commentary on law. In twenty points, Pommersheim reflects on the nuances of poetry and law. As Pommersheim juxtaposes poetry and law, law and poetry, he reminds us what law is and what it is not.

It is the first contribution to a new section of the Journal which will contain work that crosses law with other disciplines.

Intertribal Conflicts And Customary Law Regimes In North Africa: A Comparison Of Haratin And Ait 'Atta Indigenous Legal Systems, Anna Natividad Martinez

Tribal Law Journal

The Haratin people of North Africa are subjects in crisis; they are people whose origins are debated and whose social status is scorned. As an indigenous population in the midst of regional turmoil, they have been subject to removal, forced labor and economic deprivation. Their exploitation by both French colonial forces and other indigenous populations (namely Arabs and Berbers) has displaced the Haratin way of life and has subsumed their legal culture.

The Origins, Current Status, And Future Prospects Of Blood Quantum As The Definition Of Membership In The Navajo Nation, Paul Spruhan

Tribal Law Journal

In this article, the author discusses the origin of the Navajo Nation's blood requirement. Mr. Spruhan examines the intended purpose of the quarter-blood quantum definition and the role of the Bureau of Indian Affairs. He reviews the current status, regulation, and recent attempts to change the quarter-blood quantum requirement. He discusses the future of the quarter-blood quantum requirement with respect to the Navajo Nation Council's 2002 resolution known as the "Fundamental Laws of the Diné," a resolution mandating the application of traditional law, customary law, natural law, and common law to the Navajo Nation Government and its entities. In this …

Customary Law: The Way Things Were, Codified, Exra Rosser

Tribal Law Journal

The author explores the meaning of customary law from its most general meaning to the meaning and application within various tribal courts. Mr. Rosser discusses the weight of customary law when choice of law and conflict of law issues arise within tribal courts. He discusses the challenges in uniformly applying customary law. He also discusses the challenges in substantiating customs when presented to a tribal court, including the use of experts. Mr. Rosser highlights the complexity and variance of customary law between tribal courts while emphasizing the importance of tribal jurisprudence. Finally, the author provides an appendix of rules and …

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 …

Profile Of The Sayisi Dene Nation Of Tadoule Lake In Northern Manitoba, Kwesi Baffoe

Tribal Law Journal

The cultural groups among the Aboriginal peoples of Northern Canada correspond to climatic latitudinal divides. Above the tree line, where the boreal forest meets the tundra, are the Inuit whose territory stretches far into the arctic. South of the tree line are the Dene, and below them are the Cree nations of the prairies. The goal of this paper is to concentrate on the nature of the particular culture of the Dene People.

A Restatement Of The Common Law Of The Grand Traverse Band Of Ottawa And Chippewa Indians, Matthew L.M. Fletcher, Zeke Fletcher

Tribal Law Journal

This this article sets forth the case law propounded by the Grand Traverse Band Tribal Court. The Grand Traverse Band, with whom the United States concluded two treaties in the 19th Century, only to be denied sovereign status wrongly for over one hundred years, was "re-recognized" by the United States in 1980. The 1988 Grand Traverse Band Constitution established a politically independent Tribal Judiciary that has ruled on a wide spectrum of issues ranging from administrative and constitutional law to fishing and gaming, and from sovereign immunity and tribal economic development to tribal membership. The Restatement distills the principles of …

Diné Bi Beenahaz'Áanii: Codifying Indigenous Consuetudinary Law In The 21st Century, Kenneth Bobroff

Tribal Law Journal

The fundamental laws of the Diné, "the People" in the Navajo language, were placed by the Holy People long before Spaniards arrived in the New World. Since Coronado first traveled to Navajo Country almost five centuries ago, Diné have resisted European assaults on Navajo Law. On November 1, 2002, the Navajo Nation Council acknowledged the survival of the fundamental laws of the Diné, recognizing four specific constituent elements — traditional law, customary law, natural law, and common law – and explaining the principles of each.

Expanding The Network Of Safety: Tribal Protection Orders For Survivors Of Sexual Assault, Sara Deer

Tribal Law Journal

The right to exist in a world free from violence is a basic tenet in many indigenous cultures and governments. The epidemic of sexual violence perpetrated against Native American women in the United States reflects a fundamental breakdown in the cultural and legal norms that have served to provide protection to Native women from time immemorial.

What Indian Tribes Can Do To Combat Child Sexual Abuse (Issue Paper), Larry Echohawk, Pawnee Indian Tribe, Tessa Meyer Santiago

Tribal Law Journal

One of the most destructive problems affecting children in "Indian country" today is sexual abuse. Increasing reports of child sexual abuse and the severe impact this type of crime has on Indian youth and their families have prompted tribal leaders to voice great concern about the impact of this crime on Indian communities.

Law Enforcement Authority In Indian Country, Melissa L. Tatum

Tribal Law Journal

The protection order has proven to be an effective tool in the war against domestic violence. A protection order, however, is good only so long as it can be enforced, and enforcement has proven to be a problem when a person travels with a protection order to a different jurisdiction.

Cherokee Nation Election Of 1995, Ahnawake Carroll

Tribal Law Journal

The Cherokee Nation Election of 1995 by Ahnawake Carroll discusses a test of the constitutional distribution of powers within the Cherokee government in the context of the 1995 tribal election. This article explores through the mechanism of five selected rulings the role of the tribal judiciary in adjudicating various controversies arising out of the election resulting in the judiciary placing "a check on the legislative and executive powers of the Cherokee government" based upon interpretations of the Cherokee Constitution, as well as codified Cherokee law.

Cherokee Nation Tribal Profile, Ahnawake Carroll

Tribal Law Journal

Cherokee Nation Tribal Profile by Ahnawake Carroll provides readers with an overview of the Cherokee Nation Tribal Government. This profile includes information regarding both the historical and contemporary uses of the tribe's traditional law, law of governance, enacted law, and case law.

Cp 87 And Cp 100: Allotment And Fractionation Within The Citizen Potawatomi Nation, Mark Welliver

Tribal Law Journal

CP 87 and CP 100: Allotment and Fractionation Within the Citizen Potawatomi Nation by Mark Welliver illustrates some of the problematic issues faced today by interest owners of Indian allotment land by using his father's interest in allotment land as a "hypothetical," in the context of the Citizen Band Potawatomi's history and removal to Oklahoma. The article also discusses "solutions that are applicable either by the federal government, the tribes, or the individual interest holders."

The Status Of Traditional Indian Justice, Agustin Grijalva

Tribal Law Journal

The Status of Traditional Indian Justice in Ecuador by Agustin Grijalva discusses constitutional reforms in Ecuador that recognize traditional Indian law and traditional Indian authorities as collective Indian rights. This article explores the historical background of the constitutional reforms, how these reforms might affect the current Ecuadorian judicial system and some potential problems in administering these reforms.

Restoring Harmony Through Nalyeeh: Can The Navajo Common Law Of Torts Be Applied In State And Federal Forums?, J. R. Mueller

Tribal Law Journal

Restoring Harmony through Nalyeeh: Can the Navajo Common Law of Torts be Applied in State and Federal Forums? by J. R. Mueller demonstrates "that the Navajo Nation has developed and articulated a modern tort law and doctrine of restitution grounded in Navajo tradition and evolved from ancient custom, similar to the Anglo-American notion of common law." This article also explores whether tribal customary law can be applied in state and federal forums in light of a recent federal case Cheromiah v. United States.

Oglala Lakota Nation Profile, Danielle Her Many Horses

Tribal Law Journal

Oglala Lakota Nation Profile by Danielle Her Many Horses provides an overview of the Oglala Lakota Nation government. This profile contains information on the Oglala Lakota Nation's traditional governance and its contemporary government.

Pueblo Of Laguna Tribal Government Profile, Kim Coco Iwamoto, Frank Cerno Jr.

Tribal Law Journal

Pueblo of Laguna Tribal Government Profile by Kim Coco Iwamoto, provides readers with an overview of the Pueblo of Laguna Tribal Government. Iwamoto's profile contains information on the Pueblo's traditional law, governance, dispute resolution, and extratribal law.

Introduction To New Mexico Tribal Court Handbook, Tribal Law Journal Staff

Tribal Law Journal

These handbooks are intended to help attorneys and advocates become more aware of the various individual tribal court systems and their rules and protocol.

Means V. District Court Of The Chinle Judicial District And The Hadane Doctrine In Navajo Criminal Law, Paul Spruhan

Tribal Law Journal

This case note analyzes the Navajo Nation's application of traditional law concepts in order to find criminal jurisdiction to prosecute a non-member Indian in Means v. District Court. The author examines this use in light of the Supreme Court's decision in Duro v. Reina.