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Indigenous, Indian, and Aboriginal Law Commons™
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- Legal status of Native Americans (5)
- Tribal sovereignty (5)
- Native Americans (4)
- Tribal courts (3)
- American Indian law (2)
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- Environmental protection (2)
- Equality (2)
- Land use (2)
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- Native Americans -- Sovereignty (2)
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- Dakota Access Pipeline protests (1)
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- Federal Indian law (1)
Articles 1 - 30 of 33
Full-Text Articles in Indigenous, Indian, and Aboriginal Law
Federal Indian Law As Method, Matthew L.M. Fletcher
Federal Indian Law As Method, Matthew L.M. Fletcher
University of Colorado Law Review
No abstract provided.
Decolonization: Treaties, Resource Use, And Environmental Conservation, Gerald Torres
Decolonization: Treaties, Resource Use, And Environmental Conservation, Gerald Torres
University of Colorado Law Review
No abstract provided.
Not Yet America's Best Idea: Law, Inequality, And Grand Canyon National Park, Sarah Krakoff
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
Honoring Sally Jewell, Charles Wilkinson
University of Colorado Law Review
No abstract provided.
Beyond Vawa: Protecting Native Women From Sexual Violence Within Existing Tribal Jurisdictional Structures, Jessica Allison
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 …
Standing Rock, The Sioux Treaties, And The Limits Of The Supremacy Clause, Carla F. Fredericks, Jesse D. Heibel
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.
Maxwell, Lewis V. Clarke, And The Trail Around Tribal Sovereign Immunity, Allison Hester
Maxwell, Lewis V. Clarke, And The Trail Around Tribal Sovereign Immunity, Allison Hester
University of Colorado Law Review
Tribal sovereign immunity is an important tool available to American Indian tribes as they have rebuilt, restructured, and rejuvenated their communities in the era of Self- Determination following centuries of colonialism, land grabs, and cultural genocide. Sovereign immunity protects tribes by establishing a barrier to both trampling of tribal sovereignty through non-tribal courts and costly adverse judgments. Recent precedent from the Ninth Circuit has weakened tribal sovereign immunity. Maxwell v. County of San Diego, pivoting from previous decisions, held that tribal employees can be sued individually for money damages for actions taken in the course and scope of their employmentas …
Tribes As Innovative Environmental "Laboratories", Elizabeth Ann Kronk Warner
Tribes As Innovative Environmental "Laboratories", Elizabeth Ann Kronk Warner
University of Colorado Law Review
Tribes are not vestiges of the past, but laboratories of the future. - Vine Deloria, Jr1. Indian tribes, because of their distinctive regulatory authority and significant connection to the environment, possess unique capacities to innovate within the field of environmental law in the over fifty-six million acres that make up Indian country. This Article-the first scholarly work to address this aspect of tribal environmental law advocates for the idea of tribes as "laboratories" for examining environmental regulation. Tribes enact environmental regulation by two primary means-in their capacity as "tribes as states" (TAS) and in their capacity as inherent sovereigns-both of …
Congress And Indians, Kirsten Matoy Carlson
Congress And Indians, Kirsten Matoy Carlson
University of Colorado Law Review
Contrary to popular narratives about courts protecting certain minority rights from majoritarian influences, Indian nations lose in the United States Supreme Court over 75 percent of the time. As a result, scholars, tribal leaders, and advocates have suggested that Congress, as opposed to the courts, may be more responsive to Indian interests and have turned to legislative strategies for pursuing and protecting tribal interests. Yet very little is known about the kinds of legislation Congress enacts relating to American Indians. This Article charts new territory in this understudied area and responds to recent calls for more empirical legal studies in …
Misadventures In Indian Law: The Supreme Court's Patchak Decision, Anna O'Brien
Misadventures In Indian Law: The Supreme Court's Patchak Decision, Anna O'Brien
University of Colorado Law Review
"After today, any person may sue under the Administrative Procedure Act . .. to divest the Federal Government of title to and possession of land held in trust for Indian tribes . . . so long as the complaint does not assert a personal interest in the land.' - Justice Sotomayor, dissenting in Match-E-Be-Nash- She- Wish Band of Pottawatomi Indians v. Patchak. Ever since European colonization of the Americas began in the fifteenth century, there has been friction between the new arrivals and the native inhabitants. The United States has dealt with its "Indian problem" through assimilation, reservations, and eventually, …
Comparative Institutional Competency And Sovereignty In Indian Affairs, Michalyn Steele
Comparative Institutional Competency And Sovereignty In Indian Affairs, Michalyn Steele
University of Colorado Law Review
While vigorous debate surrounds the proper scope and ambit of inherent tribal authority, there remains a critical antecedent question: whether Congress or the courts are ultimately best situated to define the contours of inherent tribal authority. In February 2013, Congress enacted controversial tribal jurisdiction provisions as part of the Violence Against Women Act reauthorization recognizing and affirming inherent tribal authority to prosecute all persons, including non-Indian offenders, for crimes of domestic violence in Indian country. This assertion by Congress of its authority to set the bounds of tribal inherent authority-beyond where the United States Supreme Court has held tribal inherent …
Meaningful Consultation With Tribal Governments: A Uniform Standard To Guarantee That Federal Agencies Properly Consider Their Concerns, Michael Eitner
Meaningful Consultation With Tribal Governments: A Uniform Standard To Guarantee That Federal Agencies Properly Consider Their Concerns, Michael Eitner
University of Colorado Law Review
"Mount Tenabo is the source of our creation stories and is a central part of our spiritual world view. . . . It holds the Puha, or life force, of the Creator. We pray to the Mountain for renewal, which comes from Mt. Tenabo's special place in Western Shoshone religion.' ' - Sandy Dann, Western Shoshone The obligation that federal agencies consult with Indian tribes regarding undertakings that impact tribal interests is grounded in various statutes, implementing regulations, and Executive Order 13,175. Currently, tribes confront a variety of approaches to consultation because each agency develops its own standards for conducting …
Never Construed To Their Prejudice: In Honor Of David Getches, Richard B. Collins
Never Construed To Their Prejudice: In Honor Of David Getches, Richard B. Collins
University of Colorado Law Review
This article reviews and analyzes the judicial canons of construction for Native American treaties and statutes. It discusses their theoretical justifications and practical applications. It concludes that the treaty canon has ready support in contract law and the law of treaty interpretation. Justification of the statutory canon is more challenging and could be strengthened by attention to the democratic deficit when Congress imposes laws on Indian country. Applications of the canons have mattered in disputes between Indian nations and private or state interests. They have made much less difference, and have suffered major failings, in disputes with the federal government. …
Indian Courts And Fundamental Fairness: Indian Courts And The Future Revisited, Matthew L.M. Fletcher
Indian Courts And Fundamental Fairness: Indian Courts And The Future Revisited, Matthew L.M. Fletcher
University of Colorado Law Review
This article comes out of the University of Colorado Law Review's symposium issue honoring the late Dean David H. Getches. It begins with Dean Getches's framework for analyzing Indian courts. I revisit Indian Courts and the Future, the 1978 report drafted by Dean Getches, and the historic context of the report. I compare the 1978 findings to the current state of Indian courts in America. This article focuses on the reality that the ability of Indian courts to successfully guarantee fundamental fairness in the form of due process and equal protection of the law for individuals under tribal government authority …
Remarks Of David H. Getches: Federal Bar Association Indian Law Conference (April 7, 2011), David H. Getches
Remarks Of David H. Getches: Federal Bar Association Indian Law Conference (April 7, 2011), David H. Getches
University of Colorado Law Review
No abstract provided.
Nagpra In Colorado: A Success Story, Cecily Harms
Nagpra In Colorado: A Success Story, Cecily Harms
University of Colorado Law Review
A primary goal of the Native American Graves Protection and Repatriation Act (NAGPRA) is to correct the human rights violations committed against Native Americans from centuries of grave looting, stealing, and improper sales of cultural items. In the twenty-two years since NAGPRA's passage, the human rights foundation of the Act has been overshadowed by struggles regarding interpretation and implementation. The museums and Native American tribes of Colorado have not lost sight of NAGPRA's human rights foundation, however. Their commitment to the spirit of NAGPRA is evident in the museums' and tribes' approach to basic implementation and taking the initiative to …
Re-Evaluating Tribal Customs Of Land Use Rights, John C. Hoelle
Re-Evaluating Tribal Customs Of Land Use Rights, John C. Hoelle
University of Colorado Law Review
Indigenous peoples developed sustainable land tenure systems over countless generations, but these customary systems of rights are barely used by American Indian tribes today. Would increasing formal recognition of these traditional customs be desirable for tribes in a modern context? This Comment examines one traditional form of indigenous land tenure-the use right-and argues that those tribes that historically recognized use rights in land might benefit from increased reliance on these traditional customs. The Comment argues that in the tribal context, use rights can potentially be just as economically efficient, if not more so, than the Anglo- American system of unqualified, …
Keynote Address At The University Of Colorado Law Review Symposium: "The Next Great Generation Of American Indian Law Judges, Kevin K. Washburn
Keynote Address At The University Of Colorado Law Review Symposium: "The Next Great Generation Of American Indian Law Judges, Kevin K. Washburn
University of Colorado Law Review
No abstract provided.
Separate But Unequal: The Federal Criminal Justice System In Indian Country, Troy A. Eid, Carrie Covington Doyle
Separate But Unequal: The Federal Criminal Justice System In Indian Country, Troy A. Eid, Carrie Covington Doyle
University of Colorado Law Review
In this Article, Troy Eid, a former United States Attorney for the District of Colorado, and Carrie Covington Doyle conclude that the federal criminal justice system serving Indian country today is "separate but unequal" and violates the Equal Protection rights of Native Americans living and working there. That system discriminates invidiously because it categorically applies only to Native Americans and then only to crimes arising on Indian lands. It is unequal because it is largely unaccountable, needlessly complicated, comparatively under-funded, and results in disproportionately more severe punishments for the same crimes, especially for juveniles. This Article traces the historical foundations …
Finding The Indian Child Welfare Act In Unexpected Places: Applicability In Private Non-Parent Custody Actions, Jill E. Tompkins
Finding The Indian Child Welfare Act In Unexpected Places: Applicability In Private Non-Parent Custody Actions, Jill E. Tompkins
University of Colorado Law Review
In recent years, as an increasing number of Indian parents struggle with substance abuse and addiction, the number of abused and neglected Indian children is on the rise. Consequently, state child welfare agencies are overwhelmed, and caseworkers are only able to intervene in the most egregious situations. This understaffing of state agencies forces other family members and non-relatives to step in and care for these children. The federal Indian Child Welfare Act of 1978 ("ICWA") was enacted by the United States Congress to stem the removal, often unwarranted, of an alarmingly high percentage of Indian children from their families through …
In Theory, In Practice: Judging State Jurisdiction In Indian Country, Carole Goldberg
In Theory, In Practice: Judging State Jurisdiction In Indian Country, Carole Goldberg
University of Colorado Law Review
International relations theory suggests some new ways of thinking about the conflict between states and tribes over jurisdiction in Indian country. Realists portray the struggle as a clash of self-interested political actors, with the most powerful prevailing. Norms-driven theory suggests that perceptions of which legal system satisfies widely accepted standards for fair and effective justice will determine which entity is allowed jurisdiction. Since norms-driven analysis seems more prevalent in Supreme Court decisions, this Article pursues its implications for tribal-state jurisdictional conflicts, finding that federal courts and other decisionmakers seem to favor state over tribal jurisdiction because state jurisdiction is perceived …
Resisting Federal Courts On Tribal Jurisdiction, Matthew L.M. Fletcher
Resisting Federal Courts On Tribal Jurisdiction, Matthew L.M. Fletcher
University of Colorado Law Review
This Paper is part of a call for a paradigm-shifting reexamination by Indian tribes and Indian people about their place in the American constitutional structure. For tribal advocates to prevail in the federal judiciary, they must force federal judges to rethink everything they know about federal Indian law. There are at least two ways to do this. Tribal advocates and American Indian law scholars must first establish a baseline of knowledge and information about the realities of Indian country in the twenty-first century. This work is nascent and ongoing, if not burgeoning, but frankly is far from enough. A second …
Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide For Judges, Sarah Krakoff
Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide For Judges, Sarah Krakoff
University of Colorado Law Review
This Article provides a summary of the law of tribal civil jurisdiction over persons who are not members of the governing tribe ("nonmembers'), followed by an analysis of trends in the lower courts. It was written to respond to a consensus view at the University of Colorado Law Review Symposium: "The Next Great Generation of American Indian Law Judges," in January 2010, that a concise, practical, yet indepth treatment of this subject would be useful to the judiciary as well as practitioners. The Article traces the development of the Supreme Court's common law of tribal civil judicial jurisdiction from 1959 …
Accredited Indians: Increasing The Flow Of Private Equity Into Indian Country As A Domestic Emerging Marke, Gavin Clarkson
Accredited Indians: Increasing The Flow Of Private Equity Into Indian Country As A Domestic Emerging Marke, Gavin Clarkson
University of Colorado Law Review
Indian Country is America's domestic emerging market, and, as in other emerging markets, many successful businesses in Indian Country are starving for expansion capital. The U.S. Treasury estimates that the private-equity deficit in Indian Country is $44 billion. While the handful of wealthier tribes might be logical investors in private-equity funds deploying capital in Indian Country, the existing securities laws present a significant impediment. In particular, Regulation D of the Securities Act of 1933 does not treat tribes as "accredited investors," thus denying those tribes the ability to participate in the private-equity market. Since there is no principled reason to …
The Changing Scope Of The United States' Trust Duties To American Indian Tribes: Navajo Nation V. United States, Kimberly C. Perdue
The Changing Scope Of The United States' Trust Duties To American Indian Tribes: Navajo Nation V. United States, Kimberly C. Perdue
University of Colorado Law Review
The mineral wealth beneath Native American lands has been an enduring source of controversy with respect to treaty relations between Indian Tribes and the United States government and the contours of the United States' trust duties to the Tribes. Whereas in past years the process by which minerals like coal have been converted to capital amounted to blatant exploitation of America's indigenous populations, Indian governments have acquired more control over the extraction of their minerals throughout the twentieth century. That this control remains severely limited both by federal regulations and the United States government's complicity with powerful representatives of the …
Indigenous People And Environmental Justice: The Impact Of Climate Change, Rebecca Tsosie
Indigenous People And Environmental Justice: The Impact Of Climate Change, Rebecca Tsosie
University of Colorado Law Review
The international dialogue on climate change is currently focused on a strategy of adaptation that includes the projected removal of entire communities, if necessary. Not surprisingly, many of the geographical regions that are most vulnerable to the effects of climate change are also the traditional lands of indigenous communities. This article takes the position that the adaptation strategy will prove genocidal for many groups of indigenous people, and instead argues for recognition of an indigenous right to environmental selfdetermination, which would allow indigenous peoples to maintain their cultural and political status upon their traditional lands. In the context of climate …
The Climate Of Environmental Justice: Taking Stock- Forward, Maxine A. Burkett
The Climate Of Environmental Justice: Taking Stock- Forward, Maxine A. Burkett
University of Colorado Law Review
No abstract provided.
Eagle Feathers And Equality: Lessons On Religious Exceptions From The Native American Experience, Kevin J. Worthen
Eagle Feathers And Equality: Lessons On Religious Exceptions From The Native American Experience, Kevin J. Worthen
University of Colorado Law Review
The legality and propriety of exempting religiously motivated conduct from otherwise applicable legal norms is the subject of ongoing scholarly, judicial, and legislative debate. The issue is particularly thorny when it arises in a legal system deeply committed to the concept of equality. The Eagle Protection Act, which exempts Native Americans religious practitioners who are members offederally recognized tribes from its general prohibition on the taking and use of bald and golden eagle feathers, provides an interesting context in which to examine that debate. Not only does the Act exempt religiously motivated conduct from the otherwise applicable norms, it prefers …
A Local Development Agreement On Access To Sacred Lands, Robert Retherford
A Local Development Agreement On Access To Sacred Lands, Robert Retherford
University of Colorado Law Review
No abstract provided.
A Doctrinal Traffic Jam: The Role Of Federal Preemption Analysis In Conflicts Between State And Tribal Vehicle Codes, Kathleen Corr
A Doctrinal Traffic Jam: The Role Of Federal Preemption Analysis In Conflicts Between State And Tribal Vehicle Codes, Kathleen Corr
University of Colorado Law Review
No abstract provided.