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Articles 121 - 150 of 170
Full-Text Articles in Indigenous, Indian, and Aboriginal Law
Redskins: The Property Right To Racism, M. Alexander Pearl
Redskins: The Property Right To Racism, M. Alexander Pearl
Faculty Articles
Everyone has an opinion, from President Obama to Matthew McConaughey, about the Washington football team name. This Article comprehensively analyzes the legal and social issues surrounding the mascot controversy. I focus my inquiry on the interaction of trademark law and Indian law. I offer three primary contributions in this Article. First, the current mainstream conception of harm caused by the team name is subjective, and I argue that the harm caused by the team name and logo is objective, testable, and demonstrable. Psychological research shows that these images harm Native people. Second, the remedies offered by the Lanham Act are …
Starting From Scratch: Reasserting "Indian Country" In Alasky By Placing Alaska Native Land Into Trust, William H. Holley
Starting From Scratch: Reasserting "Indian Country" In Alasky By Placing Alaska Native Land Into Trust, William H. Holley
Florida A & M University Law Review
The Alaska Native Claims Settlement Act (ANCSA) was enacted for the purpose of promoting economic development in remote Alaska Native villages. ANCSA has fallen short of this goal. ANCSA dissolved the trust relationship between Alaska Native tribes and the federal government by transferring former tribal lands to state-chartered, Native corporations. As a result, ANCSA severed Alaska Native tribal authority from tribal lands. Today, tribal governments in Alaska are without the resources necessary to address issues that threaten the survival of their communities. Tribal governments throughout the lower 48 states have long used federal land-into-trust provisions to expand and consolidate former …
Sovereignty And Indigenous Peoples In North America, Kent Mcneil
Sovereignty And Indigenous Peoples In North America, Kent Mcneil
Articles & Book Chapters
This article examines the concept of sovereignty and its application in the context of European colonization of North America. It seeks to define sovereignty so as to avoid Eurocentric notions that denied sovereignty to Indigenous peoples. The article does this by distinguishing between defacto and de jure sovereignty: the former depends on actual possession and control of a territory, whereas the latter depends on the application of a particular legal system. Unlike de facto sovereignty, which is empirical, de jure sovereignty depends on a choice of law. Because more than one legal system can be applied to territories occupied by …
Recentering Tribal Criminal Jurisdiction, Addie C. Rolnick
Recentering Tribal Criminal Jurisdiction, Addie C. Rolnick
Scholarly Works
The boundaries of modern tribal criminal jurisdiction are defined by a handful of clear rules—such as a limit on sentence length and a categorical prohibition against prosecuting most non-Indians—and many grey areas in which neither Congress nor the Supreme Court has specifically addressed a particular question. This Article discusses five of the grey areas: whether tribes retain concurrent jurisdiction to prosecute major crimes, whether tribes affected by Public Law 280 retain concurrent jurisdiction to prosecute a full range of crimes, whether tribes may prosecute Indians who are not citizens of any tribe, whether tribes may prosecute their own citizens for …
Plenary Power, Political Questions, And Sovereignty In Indian Affairs, Michalyn Steele
Plenary Power, Political Questions, And Sovereignty In Indian Affairs, Michalyn Steele
Faculty Scholarship
A generation of Indian law scholars has roundly, and rightly, criticized the Supreme Court’s invocation of the political question doctrine to deprive tribes of meaningful judicial review when Congress has acted to the detriment of tribes. Similarly, many Indian law scholars view the plenary power doctrine — that Congress has expansive, virtually unlimited authority to regulate tribes — as a tool that fosters and formalizes the legal oppression of Indian people by an unchecked Federal government. The way courts have applied these doctrines in tandem has frequently left tribes without meaningful judicial recourse against breaches of the federal trust responsibility …
Owning Red: A Theory Of Indian (Cultural) Appropriation, Angela R. Riley, Kristen A. Carpenter
Owning Red: A Theory Of Indian (Cultural) Appropriation, Angela R. Riley, Kristen A. Carpenter
Publications
In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group of the cultural expressions and resources of another. While these and other incidents make contemporary headlines, American Indians often experience these claims within a historical and continuing experience of dispossession. For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands, artifacts, bodies, religions, identities, and beliefs, all toward the project of conquest and colonization. Indian …
Ocean Iron Fertilization And Indigenous Peoples' Right To Food: Leveraging International And Domestic Law Protections To Enhance Access To Salmon In The Pacific Northwest, Randall S. Abate
Journal Publications
Ocean iron fertilization (OIF) is a new and controversial climate change mitigation strategy that seeks to increase the carbon-absorbing capacity of ocean waters by depositing significant quantities of iron dust into the marine environment to stimulate the growth of phytoplankton blooms. The photosynthetic processes of these blooms absorb carbon from the atmosphere and sequester it to the ocean floor. OIF has been criticized on several grounds. including the foreseeable and unforeseeable adverse consequences it may cause to the marine environment, as well as the daunting challenge of reconciling several potentially overlapping sources of international and domestic environmental law, which may …
Recurring Issues In Indian Gaming Compact Approval, Kevin Washburn
Recurring Issues In Indian Gaming Compact Approval, Kevin Washburn
Faculty Scholarship
Achieving agreement between a state and a tribe, and then achieving ratification of that agreement through state and tribal legislative processes, are challenging endeavors. Failing to account for the need for federal approval can undermine the entire negotiation process. The purpose of this article is to highlight several recurring problem areas that can place compact approval at risk. These include the requirement in IGRA that a compact avoid issues that are not germane to gaming,that the compact avoid regulating Class II gaming,which is beyond state authority, and the requirementthat the state avoid expanding its reach over ancillary services and spaces …
Birthright Citizenship On Trial: Elk V. Wilkins And United States V. Wong Kim Ark, Bethany Berger
Birthright Citizenship On Trial: Elk V. Wilkins And United States V. Wong Kim Ark, Bethany Berger
Faculty Articles and Papers
In the summer of 2015, the majority of Republican candidates for president announced their opposition to birthright citizenship. The constitutional dimensions of that right revolve around two cases decided at the end of the nineteenth century, Elk v. Wilkins (1884) and United States v. Wong Kim Ark (1898). The first held that an American Indian man born in the United States was not a citizen under the Fourteenth Amendment; the second, that a Chinese American man born in the United States was indeed a citizen under the amendment. This Article juxtaposes the history of these decisions. By showing the distinctive …
Indigenous Law And Aboriginal Title, Kent Mcneil
Indigenous Law And Aboriginal Title, Kent Mcneil
All Papers
This paper discusses the relevance of Indigenous law to Aboriginal title in Canada, as revealed in three leading Supreme Court decisions: Delgamuukw v. British Columbia (1997), R. v. Marshall; R. v. Bernard (2005), and Tsilhqot’in Nation v. British Columbia (2014). It concludes that Indigenous law relates to Aboriginal title in two ways: it is part of the evidence that can be relied upon to establish the exclusive occupation necessary for title at the time of Crown assertion of sovereignty, and it continues thereafter to govern the communal land rights of the Aboriginal titleholders. Moreover, the content of Indigenous law is …
It’S Rooted In The Land: How Managing Natural Resources Leads Native American Tribes To Sovereignty, Nicky Ouellet
It’S Rooted In The Land: How Managing Natural Resources Leads Native American Tribes To Sovereignty, Nicky Ouellet
Graduate Student Theses, Dissertations, & Professional Papers
Tribal management of land and natural resources within the boundaries of Native American reservations is often superseded by state and federal policy. But control of land and resources is, ultimately, what makes a nation a nation. The three stories in this portfolio depict tribes establishing control of natural resources to various degrees of success. Chapter one is a narrative outlining the stories, my reportage and plans for publication. Chapter two: Members of the Northern Cheyenne seek to establish a medical marijuana program after the federal government relaxed enforcement of cannabis bans. Chapter three: An activist on the Fort Berthold reservation …
Process And Reconciliation: Integrating The Duty To Consult With Environmental Assessment, Neil Craik
Process And Reconciliation: Integrating The Duty To Consult With Environmental Assessment, Neil Craik
Osgoode Hall Law Journal
As the duty to consult Aboriginal peoples is operationalized within the frameworks of government decision making, the relevant agencies are increasingly turning to environmental assessment (EA) processes as one of the principal vehicles for carrying out those consultations. This article explores the practical and theoretical dimensions of using EA processes to implement the duty to consult and accommodate. The relationship between EA and the duty to consult has arisen in a number of cases and a clear picture is emerging of the steps that agencies conducting EAs must carry out in order to discharge their constitutional obligations to Aboriginal peoples. …
Instrumentalizing The Expressive: Transplanting Sentencing Circles Into The Canadian Criminal Trial, Toby S. Goldbach
Instrumentalizing The Expressive: Transplanting Sentencing Circles Into The Canadian Criminal Trial, Toby S. Goldbach
Cornell Law Faculty Publications
This Article examines reforms to criminal sentencing procedures in Canada, focusing on Aboriginal healing circles, which were incorporated as "sentencing circles" into the criminal trial. Using the lens of comparative law and legal transplants, this Article recounts the period of sentencing reform in Canada in the 1990s, when scholars, practitioners, and activists inquired into Aboriginal confrontation with the criminal justice system by comparing Euro-Canadian and Aboriginal justice values and principles. As a way to bridge the gap between vastly differing worldviews and approaches to justice, judges and Aboriginal justice advocates transplanted sentencing circles into the sentencing phase of the criminal …
When A Tribal Entity Becomes A Nation: The Role Of Politics In The Shifting Federal Recognition Regulations, Lorinda Riley
When A Tribal Entity Becomes A Nation: The Role Of Politics In The Shifting Federal Recognition Regulations, Lorinda Riley
American Indian Law Review
Before a tribal entity can exercise the privileges and immunities of external sovereign status, they must first be recognized by the United States. For a variety of reasons, some legitimate tribal entities remain unrecognized today. The Department of the Interior has created a federal acknowledgement process under 25 C.F.R. Part 83, providing a procedure for a petitioning Indian entity to establish federal recognition. Reaching beyond a discussion of the overarching federal acknowledgment process this paper delves into the application of politics on the Department of the Interior’s administrative actions. This article explores how each presidential administration has both shaped and …
Tribal Criminal Jurisdiction Beyond Citizenship And Blood, Addie C. Rolnick
Tribal Criminal Jurisdiction Beyond Citizenship And Blood, Addie C. Rolnick
American Indian Law Review
No abstract provided.
Native Americans And The Legalization Of Marijuana: Can The Tribes Turn Another Addiction Into Affluence?, Melinda Smith
Native Americans And The Legalization Of Marijuana: Can The Tribes Turn Another Addiction Into Affluence?, Melinda Smith
American Indian Law Review
No abstract provided.
Coalbed Methane Development In Wyoming And Montana: The Potential Impacts Of Montana V. Wyoming, Coalbed Methane Development, And Water Quality On The Tribes Of The Powder River And Wind River Basins, Mallory J. Irwinsky
American Indian Law Review
No abstract provided.
The Bureau Of Land Management's Finalized Hydraulic Fracturing Rule On Tribal Lands: A Responsibility Or Intrusion?, Kerstie B. Moran
The Bureau Of Land Management's Finalized Hydraulic Fracturing Rule On Tribal Lands: A Responsibility Or Intrusion?, Kerstie B. Moran
American Indian Law Review
No abstract provided.
Analysis Of A Bias-Based Exception To The Doctrine Of Exhaustion In Wilson V. Bull, R. Mitchell Mcgrew
Analysis Of A Bias-Based Exception To The Doctrine Of Exhaustion In Wilson V. Bull, R. Mitchell Mcgrew
American Indian Law Review
No abstract provided.
A Starving Culture: Alaskan Native Villages’ Fight To Use Traditional Hunting And Fishing Grounds, Jeffrey W. Stowers, Jr.
A Starving Culture: Alaskan Native Villages’ Fight To Use Traditional Hunting And Fishing Grounds, Jeffrey W. Stowers, Jr.
American Indian Law Review
No abstract provided.
Federal Statutory Responsibility And The Mental Health Crisis Among American Indians, Abilene Slaton
Federal Statutory Responsibility And The Mental Health Crisis Among American Indians, Abilene Slaton
American Indian Law Review
No abstract provided.
Lessons Learned: Avoiding The Hardships Of Tribal Mineral Leasing In The Development Of Oklahoma Tribal Wind Energy, Wyatt Swinford
Lessons Learned: Avoiding The Hardships Of Tribal Mineral Leasing In The Development Of Oklahoma Tribal Wind Energy, Wyatt Swinford
American Indian Law Review
No abstract provided.
Nothing Personal (Or Subject Matter) About It: Jurisdictional Risk As An Impetus For Non-Tribal Opt-Outs From Tribal Economies, And The Need For Administrative Response, Joel Pruett
American Indian Law Review
No abstract provided.
Implementing A Greener Redd+ In Black & White: Preserving Wounaan Lands And Culture In Panama With Indigenous-Sensitive Modifications To Redd+, Cindy Campbell
Implementing A Greener Redd+ In Black & White: Preserving Wounaan Lands And Culture In Panama With Indigenous-Sensitive Modifications To Redd+, Cindy Campbell
American Indian Law Review
No abstract provided.
Competing Visions Of Appellate Justice For Indian Country: A United States Court Of Indian Appeals Or An American Indian Supreme Court, Eugene R. Fidell
Competing Visions Of Appellate Justice For Indian Country: A United States Court Of Indian Appeals Or An American Indian Supreme Court, Eugene R. Fidell
American Indian Law Review
No abstract provided.
The Promise Zone Initiative And Native American Economic Development: Only The First Step Forward Toward The Promise Of A Brighter Future, James Hall
American Indian Law Review
No abstract provided.
A Pretty Smart Answer: Justifying The Secretary Of The Interior’S “Seminole Fix” For The Indian Gaming Regulatory Act, Austin R. Vance
A Pretty Smart Answer: Justifying The Secretary Of The Interior’S “Seminole Fix” For The Indian Gaming Regulatory Act, Austin R. Vance
American Indian Law Review
No abstract provided.
Winner, Best Appellate Brief In The 2016 Native American Law Student Association Moot Court Competition, Ashley Akers, Maureen Orth
Winner, Best Appellate Brief In The 2016 Native American Law Student Association Moot Court Competition, Ashley Akers, Maureen Orth
American Indian Law Review
No abstract provided.
Capital, Inequality, And Self-Determination: Creating A Sovereign Financial System For Native American Nations, W. Gregory Guedel, Ph.D, J. D. Colbert
Capital, Inequality, And Self-Determination: Creating A Sovereign Financial System For Native American Nations, W. Gregory Guedel, Ph.D, J. D. Colbert
American Indian Law Review
No abstract provided.
Why Indigenous Peoples’ Property Rights Matter: Why The United Nations Declaration On The Rights Of Indigenous Peoples May Be Used To Condemn Isis And The State Of Iraq For Their Failure To Protect The Property Rights Of Indigenous Peoples In The Nineveh Plains, Brooke E. Hamilton
American Indian Law Review
No abstract provided.