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Procedural & Scheduling Order For Review Of Proposed Settlement Agreement & Partial Final Decree (Taos), Usdc, Dcnm

Native American Water Rights Settlement Project

Court Procedural and Scheduling Order for Review of Proposed Settlement Agreement and Partial Final Judgment and Decree [Doc. No. 5548]: Entered Mar. 11, 2013 by USDC, DCNM, Nos. 69cv07895 Rio Pueblo de Taos Adjudication & 69cv07939 Rio Hondo Adjudication (Consolidated). Taos Pueblo Indian Water Rights Settlement Act enacted as Title V of the Claims Resolution Act of 2010, Pub. L. No. 111-291, 124 Stat. 3064, 3122-34 (2010). Court grants July 29, 2011 joint motion [Doc. No. 5492] of settlement parties for approval of procedures for providing notice of Settlement Agreement and proposed decree and judgment; and, conducting inter se proceeding …

Indigenous Restitution In Settling Water Claims: The Developing Cultural And Commercial Redress Opportunities In Aotearoa, New Zealand, Jacinta Ruru

Washington International Law Journal

Water is important to all peoples, including indigenous peoples. In recent years, the government in Aotearoa, New Zealand has utilized various cultural redress-type legal mechanisms to recognize and revive the importance of water to the Maori people’s identity, health, and wellbeing. These mechanisms create revolutionary modern opportunities for Maori to participate in the decision-making of how specific waters are used and protected. In particular, the negotiated agreements for the Te Arawa Lakes, and the Waikato, Waipa, and Whanganui rivers are studied in this article as prominent examples of how the government has agreed to, for example, co-management regimes. With the …

Protecting The Spiritual Beliefs Of Indigenous Peoples—Australian Case Studies, Michael Blakeney

Washington International Law Journal

This article examines the extent to which the spiritual beliefs of Aboriginal and Torres Strait Islander Peoples are protected under current Australian law. The first significant recognition by the High Court of Australia of the legal rights of indigenous peoples was in relation to native title over real property. As those peoples define their status and society by reference to their relationship with the land, this article considers the ultimately unsuccessful attempt to protect their spiritual beliefs as an incident of native title law. It reviews a line of intellectual property cases which have been a more fruitful source of …

Introduction, Jonathan A. Franklin

Washington International Law Journal

The four articles in this issue all contribute to the dialogue surrounding the intersection of indigenous people’s rights within international law and domestic actions that conflict with those rights. While the UNDRIP and other international law instruments are explicit about how states should act towards indigenous populations, in many cases these international instruments conflict with domestic law. There are several reasons for this discrepancy, including states’ self-interest, paternalism, and lack of resources needed to address both national concerns and the rights of indigenous peoples.

The Struggle For Laws Of Free, Prior, And Informed Consultation In Peru: Lessons And Ambiguities In The Recognition Of Indigenous Peoples, Elizabeth Salmón G.

Washington International Law Journal

Despite the fact that Peru ratified ILO Convention 169 on December 2, 1993 and was therefore bound by those dispositions, it adopted public policies without consulting indigenous people. This lack of dialogue led to social conflict over the management of natural resources. In June 2009, a violent episode of social unrest emerged in the provinces of Bagua and Utcubamba during the government of Alan García after the entry into force of the United States-Peru Trade Promotion Agreement (“PTPA”). Indigenous people believed that PTPA aimed to sacrifice rainforest conservation for oil and mining exploitation. In this context, indigenous people grew frustrated …

Respecting Democratic Constitutional Change, Craig M. Scott

Commissioned Reports, Studies and Public Policy Documents

On Monday, January 28, 2013, I was privileged to table, on behalf of the NDP and in my capacity as Official Opposition Critic for Democratic and Parliamentary Reform, Bill C-470, An Act Respecting Democratic Constitutional Change. On the same day, my colleague Romeo Saganash, NDP Critic for Aboriginal Intergovernmental Affairs, tabled Bill C-469 that would require Canadian law and practice to respect the United Nations Declaration on the Rights of Indigenous Peoples. In this way, on that day, the New Democratic Party was making sure that Canadians know that our party sees the building and nurturing of sustainable and cooperative …

Undrip And The Intervention: Indigenous Self-Determination, Participation, And Racial Discrimination In The Northern Territory Of Australia, Anna Cowan

Washington International Law Journal

The adoption of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) by the General Assembly in 2007 was a landmark achievement in the development of indigenous rights under international law, particularly through its unequivocal recognition of indigenous peoples’ right to self-determination. That same year, Australia launched a comprehensive Intervention into Aboriginal communities in the Northern Territory, which purported to safeguard important human rights but was heavily criticized for its discriminatory and non-consultative approach. This article explores the meaning of self-determination under international law, now that the long debate over whether indigenous peoples are “peoples” has finally been …

The Right To Counsel For Indians Accused Of Crime: A Tribal And Congressional Imperative, Barbara L. Creel

Faculty Scholarship

Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it …

Uncounseled Tribal Court Guilty Pleas In State And Federal Courts: Individual Rights Versus Tribal Self-Governance, Christiana M. Martenson

Michigan Law Review

Indian tribes in the United States are separate sovereigns with inherent self-governing authority. As a result, the Bill of Rights does not directly bind the tribes, and criminal defendants in tribal courts do not enjoy the protection of the Sixth Amendment right to counsel. In United States v. Ant, a defendant - without the legal assistance that a state or federal court would have provided - pled guilty to criminal charges in tribal court. Subsequently, the defendant faced federal charges arising out of the same events that led to the tribal prosecution. The Ninth Circuit in Ant barred the federal …

Extreme Rubber-Stamping: The Fee-To-Trust Process Of The Indian Reorganization Act Of 1934, Kelsey J. Waples

Pepperdine Law Review

In recognition of the massive loss of Indian territory since the European “discovery” of America, the Indian Reorganization Act of 1934 provides a process whereby Indian tribes can expand their reservations by applying to have additional land placed into trust for their benefit. This process, known as the fee-to-trust process, is the subject of fervent opposition by many affected communities because once taken into trust for a tribe, such land is no longer subject to state and local taxation or zoning, planning, and other regulatory controls. Accordingly, this Comment explores the efficacy of the fee-to-trust process by analyzing the Pacific …

A Testament To Power: Mary Woolsey And Dolores Rodriguez As Trial Witnesses In Arizona's Early Statehood, Katrina Jagodinsky

Department of History: Faculty Publications

In 1913, two women made history when they testified before the all-white, all-male jury of the Superior Court of Yavapai County in the State of Arizona v. Juan Fernandez murder trial. Mary Woolsey, an elderly Yavapai widow, and Dolores Rodriguez, a Mexican single mother of three, established the legal precedent for allowing non-English-speaking, non-citizen women to testify in state courts in Arizona when many other western states still did not grant such privileges to indigenous residents. Woolsey and Rodriguez showed that Arizona's indigenous population were competent, if somewhat problematic, members of Arizona's body politic, and their historic involvement in the …

San Felipe Pueblo Tribal Court Handbook (2013), Tribal Law Journal Staff

Tribal Law Journal

This handbook helps take some of the mystery out of practicing in tribal courts. Without the necessary information to learn new rules and protocols many attorneys are understandably reluctant to practice in a new jurisdiction. As a result, tribal courts are underused or misused. This handbook is intended to help attorneys and advocates become more aware of the various individual tribal court systems and to learn their rules and protocol.

San Ildefonso Pueblo Tribal Court Handbook (2013), Tribal Law Journal Staff

Tribal Law Journal

This handbook helps take some of the mystery out of practicing in tribal courts. Without the necessary information to learn new rules and protocols many attorneys are understandably reluctant to practice in a new jurisdiction. As a result, tribal courts are underused or misused. This handbook is intended to help attorneys and advocates become more aware of the various individual tribal court systems and to learn their rules and protocol.

Cross-Boundary Water Transfers In The Colorado River Basin: A Review Of Efforts And Issues Associated With Marketing Water Across State Lines Or Reservation Boundaries, Colorado River Governance Initiative, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, Western Water Policy Program

Books, Reports, and Studies

65 p. : charts ; 29 cm

Getches Wilkinson Center Newsletter, Winter/Spring 2013, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Getches-Wilkinson Center for Natural Resources, Energy, and the Environment Newsletter (2013-)

No abstract provided.

Rights And Roles: Alaska Natives And Ocean And Coastal Subsistence Resources, Jordan Diamond, Greta Swanson, Kathryn Mengerink

Florida A & M University Law Review

This article explores the strengths and weaknesses of the two pillars of the framework for managing marine subsistence resources in Alaska: the pillar that protects Alaska Native rights to marine subsistence resources, and the pillar that protects the resources themselves. It focuses on how well the pillars support subsistence practices and Alaska Native leadership in the management framework. Part I summarizes the management challenge posed by the effects rapid climate change is causing in the Arctic, including impacts to the marine subsistence resources upon which Alaska Natives depend. Part II explores the laws and doctrines related to Alaska Native subsistence …

Gauging The Success Of The Coeur D'Alene Lake Management Plan: An Example Of Tribal-State Cooperation, Dylan R. Hedden-Nicely

Articles

No abstract provided.

Land Into Trust: An Inquiry Into Law, Policy, And History, Frank Pommersheim

Faculty Publications

No abstract provided.

Frameworks For Amending Reservoir Water Management, Ethan Mower, Leandro E. Miranda

Publications

Managing water storage and withdrawals in many reservoirs requires establishing seasonal targets for water levels (i.e., rule curves) that are influenced by regional precipitation and diverse water demands. Rule curves are established as an attempt to balance various water needs such as flood control, irrigation, and environmental benefits such as fish and wildlife management. The processes and challenges associated with amending rule curves to balance multiuse needs are complicated and mostly unfamiliar to non-US Army Corps of Engineers (USACE) natural resource managers and to the public. To inform natural resource managers and the public we describe the policies and process …

Winter 2013 Utton Center Newsletter, Utton Center, University Of New Mexico - School Of Law

Publications

No abstract provided.

Toward Genuine Tribal Consultation In The 21st Century, Colette Routel, Jeffrey Holth

University of Michigan Journal of Law Reform

The federal government's duty to consult with Indian tribes has been the subject of numerous executive orders and directives from past and current U.S. Presidents, which have, in turn, resulted in the proliferation of agency-specific consultation policies. However, there is still no agreement regarding the fundamental components of the consultation duty. When does the consultation duty arise? And what does it require of the federal government? The answers to these questions lie in the realization that the tribal consultation duty arises from the common law trust responsibility to Indian tribes, which compels the United States to protect tribal sovereignty and …

Toward Genuine Tribal Consultation In The 21st Century, Colette Routel, Jeffrey K. Holth

Faculty Scholarship

The tribal right to consultation requires the federal government to consult with Indian tribes prior to the approval of any federal project, regulation, or agency policy. This article, which provides the first comprehensive analysis of this right, highlights the current inconsistencies in interpretation and application of the consultation duty. It then attempts to provide suggestions for changes that can be implemented by the legislative, executive or judicial branches.

In Part I, we provide a brief overview of the development of the trust responsibility and explain how it came to include three substantive duties: to provide services to tribal members, to …

Muscogee Constitutional Jurisprudence: Vhakv Em Pvtakv (The Carpet Under The Law), Sarah Deer, Cecilia Knapp

Faculty Scholarship

In 1974, a group of Mvskoke citizens from Oklahoma sued the federal government in federal court. Hanging in the balance was the future of Mvskoke self-determination. The plaintiffs insisted that their 1867 Constitution remained in full effect, and that they still governed themselves pursuant to it. The United States argued that the constitution had been nullified by federal law passed in the early 1900s.

To find in favor of the plaintiffs, the court would have to rule that the United States had been ignoring the most basic civil rights of Mvskoke citizens and flouting the law for over seventy years. …

Minnesota Bounties On Dakota Men During The U.S.-Dakota War, Colette Routel

Faculty Scholarship

The U.S.-Dakota War was one of the formative events in Minnesota history, and despite the passage of time, it still stirs up powerful emotions among descendants of the Dakota and white settlers who experienced this tragedy. Hundreds of people lost their lives in just over a month of fighting in 1862. By the time the year was over, thirty-eight Dakota men had been hanged in the largest mass execution in United States history. Not long afterwards, the United States abrogated its treaties with the Dakota, confiscated their reservations along the Minnesota River, and forced most of the Dakota to remove …

A Context-Sensitive Inquiry: The Interpretation Of Meaning In Cases Of Visual Appropriation Art, 12 J. Marshall Rev. Intell. Prop. L. 746 (2013), Elizabeth Winkowski

UIC Review of Intellectual Property Law

As Andy Warhol’s famous depiction of a soup can has demonstrated, the meaning of a work depends on its context. While the Campbell’s label signified one thing to shoppers in supermarkets, it raised new questions when presented as a work of art. Warhol’s work is just one example of what has come to be known as appropriation art, an artistic practice that borrows and repurposes images from the media, popular culture, and other sources. Unsurprisingly, this art form is in frequent tension with copyright law. This comment suggests that in analyzing the“purpose and character” factor of the fair use inquiry, …

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

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 …

Bordering On Discrimination: Effects Of Immigration Policies/Legislation On Indigenous Peoples In The United States And Mexico, Sara Daly

American Indian Law Review

No abstract provided.

Winner, Best Appellate Brief In The 2013 Native American Law Student Association Moot Court Competition, Zachary Diionno, Sommerset Wong

American Indian Law Review

No abstract provided.

The Promise And Perils Of Renewable Energy On Tribal Lands, Sara Bronin

Faculty Articles and Papers

No abstract provided.