Indigenous, Indian, and Aboriginal Law Commons^™

The Choctaw Nation Of Oklahoma: History, Influences, And Contemporary Setting Of The Choctaw Legal Structure, Austin C. Megli

Tribal Law Journal

The goal of this tribal profile is to provide an overview of the internal laws of the Choctaw Nation of Oklahoma; to give a detailed emphasis on the tribe’s historic use of customary law, governance structures, enacted law, case law; and to examine how their internal law changed throughout history. By helping the reader become familiar with the history of Choctaw customary law and the contemporary structure of the Choctaw government, this profile will assist practitioners and academics in understanding the Choctaw Nation. Part I of this paper will describe the customary laws of the Choctaw Nation. Part II of …

The Native American Struggle Between Economic Growth And Cultural, Religious, And Environmental Protection: A Corporate Solution, Joseph Patterson

Notre Dame Law Review Reflection

This Essay recommends a flexible corporate solution to Native American property rights issues.

Trust Or Bust: Complications With Tribal Trust Obligations And Environmental Sovereignty, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Pueblo Indian Water Rights: Charting The Unknown, Richard W. Hughes

Publications

This article examines the so-far-unsuccessful efforts to judicially define and quantify the water rights appurtenant to the core land holdings of the 19 New Mexico Pueblos, many of whose lands straddle the Rio Grande. It explains that the Tenth Circuit Court of Appeals has squarely held that Pueblo water rights are governed by federal, not state law, and are prior to those of any non-Indian appropriator, but also that the Tenth Circuit acknowledged that it could not say how those rights should be characterized. Part I of the article examines the course of the cases that have sought to achieve …

The Tribal Labor Sovereignty Act: Do Indian Tribes Finally Hold A Trump Card?, Vicki J. Limas

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

The Traffic Of Native American Women, Nasrin M. Chaudhry

Undergraduate Theses, Professional Papers, and Capstone Artifacts

No abstract available.

The Global Protection Of Traditional Knowledge: Searching For The Minimum Consensus, 17 J. Marshall Rev. Intell. Prop. L. 42 (2017), Aman Gebru

UIC Review of Intellectual Property Law

The protection of traditional knowledge (TK) – the know-how, skills, innovations and practices of indigenous peoples and local communities has been a subject of heated debate in many international forums. TK has proved to be useful as an input in modern industries. For instance, pharmaceutical companies have used medicinal TK to develop drugs more quickly. Despite its value, TK faces an alarming rate of loss and there are many initiatives that attempt to preserve it for posterity. However, almost every major issue on TK protection is contentious, including whether international TK protection is necessary or if domestic legislation alone would …

Hope For Indian Tribes In The Us Supreme Court: Menominee, Nebraska V. Parker, Bryant, Dollar General … And Beyond, Bethany Berger

Faculty Articles and Papers

There has long been concern that the U.S. Supreme Court is hostile to Indian tribes. Between 1990 and 2015, tribal interests lost in 76.5% of Supreme Court cases distinctly affecting them; the loss rate rose to 82% in the first decade of the Roberts Court. With four Indian law cases on the docket last year, Native communities were poised for disaster. Newspapers speculated on why tribes could not win in the Supreme Court. By the end of June 2016, however, tribal interests had lost just one case, won two, and the Court split four-four in a fourth, affirming a lower …

Indigenizing Equality, M. Alexander Pearl, Kyle Velte

Faculty Articles

Notwithstanding the significant victories of the LGBT civil rights movement over the past 20 years, culminating in the declaration of full marriage equality in Obergefell v. Hodges, anti-LGBT sentiment generally, and anti-marriage-equality sentiment in particular, continue to run deep. One pocket of resistance is in some tribal communities. While Obergefell unequivocally resolved the problem of the “patchwork quilt” of marriage equality among the states, the problem of gaps in marriage equality among Tribal Nations has left the problem of the “patchwork quilt” intact. This article answers the question: What is the effect of federal marriage equality on the modern expression …

Finding A Path To Reconciliation: Mandatory Indigenous Law, Anishinaabe Pedagogy, And Academic Freedom, Karen Drake

Articles & Book Chapters

The Truth and Reconciliation Commission has called on law schools in Canada to make Indigenous law a mandatory component of legal education. In its final report, the Commission provides the outline of a rationale in support of this call to action. This paper builds on that outline by grounding the Commission’s rationale in the jurisprudence on section 35(1) of the Constitution Act, 1982. Articulating a comprehensive rationale is useful for at least three reasons. First, such a rationale can underpin a response to the claim that a required Indigenous law course lacks value for those students who do not intend …

Who Owns Our Ancestors' Voices? Tribal Claims To Pre-72 Sound Recordings, Trevor Reed

Kernochan Center for Law, Media, and the Arts

A familiar story is told in Indian Country: a researcher arrives on a Native American reservation and begins recording ceremonial songs and oral histories; years later tribal members find, often to their horror, that these sensitive materials are available for sale, download, or streaming to the public. This scenario aptly describes the life of numerous sound recordings made on federally recognized Indian reservations prior to 1972, whose ownership status remains uninterrogated due to the complex overlap and ambiguities of copyright and federal Indian law. Yet recently, owing to an increased sense of self-determination and autonomy, Native American tribes have begun …

The Washington Redskins Case And The Search For Dignity, Victoria Phillips

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: For more than sixty years, Native American activists have been involved in discussions and protests over the appropriation and use of tribal references in sports names, logos, and mascots. During this same period, many of these uses have since been changed, driven by civil rights struggles and a growing awareness of the proven social harms and racism inherent in these references. Despite a gradual movement towards abolition and evolving signs of cultural understanding, many mascots invoking Native names and imagery persist today across professional, collegiate, and local school district sports. These mascots and team names, and the trademarks associated …

Traditional Problems: Gay Marriage And The Backlash Against Indian Sovereignty, Marcia A. Yablon-Zug

Faculty Publications

No abstract provided.

Through A Federal Habeas Corpus Glass, Darkly- Who Is Entitled To Effective Assistance Of Counsel In Tribal Court Under Icra And How Will We Know If They Got It?, Jordan Gross

Faculty Law Review Articles

Part I of this article is a history and analysis of the federal constitutional right to effective assistance of counsel. It explains how federal ineffective assistance of counsel jurisprudence has developed almost exclusively in the context of federal habeas review of state court convictions and rendered most federal ineffective assistance of counsel claims unviable. Part II explains the right to counsel in tribal court and the habeas corpus remedy available to tribal prisoners under ICRA. Part III identifies issues that will need to be addressed now that Congress has created a statutory ineffective assistance of counsel claim for tribal prisoners …

Valuing Sacred Tribal Waters Within Prior Appropriation, Michelle Bryan

Faculty Law Review Articles

Throughout the world water plays a central role in the spirituality of indigenous peoples. Focusing on the American West, this article first describes how tribal water needs touch upon the sacred and then explains how both federal law and state prior appropriation doctrine fail to adequately protect these important sacred views of water. Pivoting away from the classic federal law arguments, the article then advocates for an evolution in state water law regimes to provide yet unrecognized protections for tribal sacred waters. Because international law plays an increasing role in this issue, the article also explores case studies from Ireland, …

Beyond A Zero-Sum Federal Trust Responsibility: Lessons From Federal Indian Energy Policy, Monte Mills

Faculty Law Review Articles

The federal government’s trust relationship with federally- recognized Indian tribes is a product of the last two centuries of Federal Indian Law and federal-tribal relations. For approximately the last 50 years, the federal government has sought to promote tribal self-determination as a means to carry out its trust responsibilities to Indian tribes; but the shadows of prior federal policies, based largely on notions of tribal incompetence and federal paternalism, remain. Perhaps no other policy arena better demonstrates the history, evolution, and promise for reform of the federal trust relationship than Federal Indian energy policy, or the range of federal statutes …

Affirming A Pragmatic Development Of Tribal Jurisprudential Principles, Todd R. Matha

Mitchell Hamline Law Review

No abstract provided.

“Animals May Take Pity On Us”: Using Traditional Tribal Beliefs To Address Animal Abuse And Family Violence Within Tribal Nations, Sarah Deer, Liz Murphy

Mitchell Hamline Law Review

No abstract provided.

Traditional Problems: How Tribal Same-Sex Marriage Bans Threaten Tribal Sovereignty, Marcia Zug

Mitchell Hamline Law Review

No abstract provided.

Close To Zero: The Reliance On Minimum Blood Quantum Requirements To Eliminate Tribal Citizenship In The Allotment Acts And The Post-Adoptive Couple Challenges To The Constitutionality Of Icwa, Abi Fain, Mary Kathryn Nagle

Mitchell Hamline Law Review

No abstract provided.

Native Youth & Juvenile Injustice In South Dakota, Addie C. Rolnick

Scholarly Works

In this essay, Professor Rolnick uses the three themes of racism, jurisdiction, and tribal sovereignty to provide a snapshot of the juvenile justice system in South Dakota as it impacts Native youth. First, she describes the tribal juvenile justice systems in the state. She argues tribal systems should rightfully play a central role handling Native youth offenders, but they are underfunded and may not therefore be sufficiently responsive to young offenders' needs. Second, she examines the impact of federal power over youth on reservations in South Dakota. Specifically, federal juvenile jurisdiction, as well as federal financial and administrative power, can …

Consult, Consent, And Veto: International Norms And Canadian Treaties, Shin Imai

Articles & Book Chapters

Large parts of Canada, from Ontario to parts of British Columbia and north to the Northwest Territories, are covered by the “numbered treaties”, signed between First Nations and the Crown between 1871 and 1929. These treaties provide for the continuation of Indigenous hunting, fishing and harvesting activities until the land is “taken up” by the provincial Crown for activities such as mining, lumbering and settlement. This draft book chapter argues that consent of First Nations should be required before further development that impact on their harvesting rights. The consent standard has already been widely adopted in the private sector both …

Métis Action, Canadian Law And Historical Research: Preliminary Thoughts About Strategies For Current Efforts, Signa A. Daum Shanks

Articles & Book Chapters

Given the chatter and more substantive concern about Indigenous peoples as of late, many different people and institutions are both recalling what they have done (or have not done) in the past and what they will do next. While they do so, and evident in comments from everyone from the Prime Minister (Trudeau 2015) to a rally protester, the subject of how to move forward is also of issue. Within these conversations, non-Indigenous places and peoples have contributed much to the knowledge used to make more informed decisions (Eberts 2014; Slattery 2007). At the same time, Indigenous researchers and activists …

[Introduction To] Dismembered: Native Disenrollment And The Battle For Human Rights, David E. Wilkins, Shelly Hulse Wilkins

Bookshelf

While the number of federally recognized Native nations in the United States are increasing, the population figures for existing tribal nations are declining. This depopulation is not being perpetrated by the federal government, but by Native governments that are banishing, denying, or disenrolling Native citizens at an unprecedented rate. Since the 1990s, tribal belonging has become more of a privilege than a sacred right. Political and legal dismemberment has become a national phenomenon with nearly eighty Native nations, in at least twenty states, terminating the rights of indigenous citizens.

The first comprehensive examination of the origins and significance of tribal …

Taking It To The Bank: Creating A New Constitutional Standard And Using Blue Carbon Banking To Compensate The Miccosukee Tribe For The Federal "Taking" Of Their Tribal Lands, Amy Judkins

Florida A & M University Law Review

The typical remedy for a property owner whose property interests have been diminished from government regulations—as is the case with the federal government's regulation of the Miccosukee's tribal lands—would be compensation sought under the Fifth Amendment of the United States Constitution. The last clause of the Fifth Amendment— the Takings Clause—provides that "private property [shall not] be taken for public use, without just compensation." The Supreme Court has explained that the purpose of the Takings Clause is to prevent the government from "forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by …

Racial Anxieties In Adoption: Reflections On Adoptive Couple, White Parenthood, And Constitutional Challenges To The Icwa, Addie C. Rolnick

Scholarly Works

The Indian Child Welfare Act (ICWA) is under fire from people who argue that it interferes with adoptions and violates the constitution by doing so. The current crop of lawsuits is an outgrowth of a 2012 case in which the Supreme Court heard its second-ever challenge to the law. While the Court sidestepped the most far-reaching anti-ICWA arguments, the majority opinion evidenced a deep skepticism about the law. This skepticism led the Court to narrow the law’s application so that it didn’t apply to the family involved, and it seemed to invite further challenges to the law.

Responsible Resource Development And Prevention Of Sex Trafficking: Safeguarding Native Women And Children On The Fort Berthold Reservation, Kathleen Finn, Erica Gajda, Thomas Perin, Carla Fredericks

Publications

In 2010, large deposits of oil and natural gas were found in the Bakken shale formation, much of which is encompassed by the Fort Berthold Indian reservation, home to the Mandan, Hidatsa, and Arikara Nation (“MHA Nation” or “Three Affiliated Tribes” or “the Tribe”). However, rapid oil and gas development has brought an unprecedented rise of violent crime on and near the Fort Berthold reservation. Specifically, the influx of well-paid male oil and gas workers, living in temporary housing often referred to as “man camps,” has coincided with a disturbing increase in sex trafficking of Native women. The social risks …

Fathers And Feminism: The Case Against Genetic Entitlement, Jennifer S. Hendricks

Publications

This Article makes the case against a nascent consensus among feminist and other progressive scholars about men's parental rights. Most progressive proposals to reform parentage law focus on making it easier for men to assert parental rights, especially when they are not married to the mother of the child. These proposals may seek, for example, to require the state to make more extensive efforts to locate biological fathers, to require pregnant women to notify men of their impending paternity, or to require new mothers to give biological fathers access to infants.

These proposals disregard the mother's existing parental rights and …

Closing Time: Removing The State Of Oklahoma From Alcohol Regulation In Indian Country, Ryan Wilson

Oklahoma Law Review

No abstract provided.

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 …