Indigenous, Indian, and Aboriginal Law Commons^™

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Affording Oral Tradition Evidence Due Weight Before The International Court Of Justice, Terrence Neal

Faculty Scholarship

Oral traditions are irreplaceable sources of historical information, particularly with regard to Indigenous Peoples’ histories and cultures. However, when states have submitted oral traditions as evidence of historical practices, events, and circumstances in cases before the International Court of Justice (“Court”), the Court has been reluctant to afford them significant weight. This Article, which is the first detailed study on the Court’s treatment of oral traditions, examines whether the Court is failing to provide them due or appropriate weight. Based on historical, archaeological, and anthropological research, it establishes that oral traditions can be as reliable as written documents for reconstructing …

Legal Pluralism In Canada And The Vitality Of Indigenous Law, Kent Mcneil

Conference Papers

State law in Canada consists of the civil law in private law matters in Quebec and the common law in public law matters there and generally in the rest of the country, supplemented by legislation. Legislative authority is divided by the Constitution Act, 1867,1 between the federal government and the ten provinces. In addition, the three territories – Yukon, Northwest Territories, and Nunavut – have legislative authority that has been delegated to them by the Parliament of Canada. This federal division of powers means that there is federal law that is generally uniform throughout Canada (e.g. criminal law) and provincial …

Blood Quantum And The Auto-Colonization Of The Michigan Anishinaabek, Matthew L.M. Fletcher

Book Chapters

Anishinaabe storyteller Basil Johnston described the chronological path of life in four stages, what he called the four hills of life. The first stage, linked to the East, is infancy and early childhood, a time of preparation and listening. The second stage, linked to the South, is youth, a time of doing things. The third stage, linked to the West, is adulthood, a time of vision. The fourth stage, linked to the North, is Old Age, a time of the fulfillment of the vision and a time of sacred learning and teaching.

The twelve Michigan Anishinaabek tribal nations are in …

#Taxback? Prohibiting State Real Property Taxes On Land In Indian Country, Pippa Browde

Marquette Law Review

Land is a critical asset of Indian tribes. As tribes wrestle with how to create sustainable economies to support their sovereignty, the use and management of tribal land is integral. Taxation is a key component of economic development. This Article is about taxation of land within Indian country. It considers existing law that allows for state taxation of some land within Indian country. It makes a normative claim as to who the proper taxing sovereign should be based on tax policy principles and principles that support tribal self-governance and tribal sovereignty.

In Part II, this Article provides the background for …

The Utmost Rights And Interests Of The Indians: Tribal Law Interpretations Of The Indian Civil Rights Act, Kekek Jason Stark

Faculty Law Review Articles

It has been more than fifty years since Congress enacted the Indian Civil Right Act (hereinafter “ICRA”) and more than forty years since the United States Supreme Court in Martinez articulated that the tribal courts are the proper forum for the adjudication of ICRA claims. In the decades since, tribal courts have developed a rich body of intertribal common law pertaining to the implementation of the ICRA. This comes after over a century of assimilative policies in which the federal government attempted to eradicate native culture and traditions and subjected Indians to the deprivation of individual rights by federal and …

Resistance: The Mura Struggle Against Canadian Potash Mining In Brazil’S Amazon, Cardozo Law Institute In Holocaust And Human Rights (Clihhr), Federal University Of Rio Grande Do Sul, Graduate Program In Law (Ppgd/Ufrgs), International Human Rights Program (Ihrp), University Of Toronto Jackman Law, Observatory Of Socio-Environmental Law And Human Rights In The Amazon (Odsdh/Ufam)

CLIHHR Reports & Policy Submissions

A comprehensive human rights and environmental report documenting the Mura Indigenous people’s resistance to Brazil Potash’s Autazes Potash Project in the Brazilian Amazon. The report details environmental risks, human rights violations, failures in consultation processes, litigation history, corporate accountability, and the ongoing struggle for land demarcation.

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Identifying Intangible And Biocultural Heritage Elements Toward Environmental Understanding: Engaging Stakeholders Through Art, Martha B. Lerski

Publications and Research

Grounded in a case study in Barbuda in the Caribbean, this research examines sustainability from the perspective of what arts and heritage can contribute to community engagement and local and broader understandings about the environment. This article documents a growing body of literature recognizing the role of arts and culture, including local knowledge and traditional ecological knowledge (TEK), in climate change endeavors. Art and TEK present expansive world views. Contextual information situates research done on the island of Barbuda pre- and post-Hurricane Irma. Visual arts workshops engaged community members in mixed methods research. Results documented cultural elements, particularly intangible and …

How To Teach A Course On Land Use And Anti-Jewish Discrimination, Michael Lewyn

FIU Law Review

In 2022, I was asked to teach a one-week mini-course within a broader course on “Structural Barriers and the Pursuit of Equity,” a course focusing on various forms of structural discrimination The course is typically taught by over a dozen professors from various parts of Touro University, each of whom teaches for a week on a different topic. I chose to teach on issues related to land use law (because my scholarship focuses on that area) and in particular how land use law has been used by and against traditionally observant Jews (because that is the religious tradition I am …

Robots And (Indian) Reservations: A Jurisdictional Nightmare Waiting To Happen, Adam Crepelle

Faculty Publications & Other Works

Advances in artificial intelligence are expanding the possibilities of robots. Indeed, robots are now engaging in numerous activities previously thought to require human cognition, such as driving cars and diagnosing diseases. Scholars have published numerous articles examining the intersection of law and robots across myriad fields. However, legal scholarship has yet to explore the relationship between robots and federal Indian law. This is a significant oversight because there are 574 federally recognized tribes and over fifty-six million acres of Indian country. Thus, legal issues involving tribes and robots are inevitable. This is the first law review article dedicated to exploring …

Tribes As Nations: The Future Of The Trust Relationship, Adam Crepelle

Faculty Publications & Other Works

Tribes are nations. This fundamental truth is often lost in the trust relationship. For most of the United States’ history, the trust relationship was used as a justification to control tribes and obtain their resources. The trust relationship took a new shape during the 1970s—tribal self-determination. Self-determination has resulted in many benefits for tribes; however, tribes still suffer from externally imposed constraints on their sovereignty, such as complex federal bureaucracy and limits on their jurisdiction. This Article argues removing the antiquated constraints on tribal sovereignty is required for the trust relationship to advance, and, once it advances, tribes will be …

Tribal Civil Procedure: An Unexplored Path To Sovereignty And Economic Development, Adam Crepelle

Faculty Publications & Other Works

This Article argues civil procedure reform is a means of strengthening tribal sovereignty and economies. Although tribal civil procedure codes are largely consistent with their state and federal counterparts, tribal rules of procedure can be difficult to locate. The inability to locate tribal rules of procedure has led the Supreme Court to diminish tribal jurisdiction over non-Indians. Similarly, uncertainty about the rules governing tribal court operation deter businesses from investing in Indian country. By making greater efforts to publish tribal procedure rules and the jurisprudence interpreting them, tribes can enhance their sovereignty and their economies.

Tribes should also consider civil …

Judicial Imperialism: The Supreme Court’S Assault On Tribal Sovereignty And The Rule Of Law, Adam Crepelle

Faculty Publications & Other Works

The rule of law requires predictability, and the rules governing Indian country create uncertainty. For example, determining whether a person can be arrested on a reservation depends upon a combination of whether the victim and perpetrators are Indians, the type of crime, and the status of the land where the incident occurred. The same goes for contract enforcement. Even when forum selection and choice of law provisions exist, it can take years to determine whether the dispute should be adjudicated in tribal, state, or federal court. Ambiguity extends to countless other areas, including marijuana legalization and usury caps.

Indian country’s …

"A Plain Denial”: Reclaiming Equal Protection In American Juvenile Law, Addie C. Rolnick, David S. Tanenhaus, Justin Iverson, Danielle L. Silvestri

Scholarly Works

Juvenile courts are based on the premise that children are different from adults and should therefore be treated differently. Children may be treated more informally by courts, punished for different purposes, and brought before the court for different behaviors. Since In re Gault, the Supreme Court has been clear that there are limits to how different juvenile courts can be. Juveniles are entitled to many of the same procedural protections as adult criminal defendants, although the Court has preserved some procedural differences where it has determined that their benefit is outweighed by the need to preserve the informality, flexibility, …

Land Back To Right Of Return: Proposing Paths Forward In Palestine, Melanie Kallah

CMC Senior Theses

This thesis presents a parallel case study of the settler colonial histories of Canada and Palestine. The Land Back Movement was first analyzed to determine what conditions enabled the success of Indigenous land restitution in Canada. Subsequently, a cross-analysis with Palestine was conducted to ascertain whether the same enabling conditions could facilitate Palestinian land restitution, known as the Right of Return.

Homelands Not Graveyards, M. Alexander Pearl

Faculty Articles

Within the last five years, the U.S. Supreme Court has taken up several transformative cases affecting Native nations and federal Indian law jurisprudence. The Supreme Court’s decision in Arizona v. Navajo Nation is no different. This Article examines that decision and situates it within that legal history as well as the realities of present-day water resource availability. While recent decisions have shown the Court’s willingness to confirm fundamental components of federal Indian law, such as the legal tests for determining the persistence of reservation and the authority of Congress to enact the Indian Child Welfare Act, the Court’s examination of …

Corporeal Property And The Limits Of Nagpra, M. Alexander Pearl

Faculty Articles

No abstract provided.

The Erosion Of Trust: Arizona V. Navajo, Climate Change, And The Potential Abrogation Of Tribal Water Rights, Dr. Taino J. Palermo

Roger Williams University Law Review

No abstract provided.

The Parallels In The Repatriation Of Cultural Property: How The Holocaust Expropriated Art Recovery Act Provides A Framework For A More Effective Native American Grave Protection And Repatriation Act, Samantha Rhodes

Roger Williams University Law Review

No abstract provided.

Respect And Submission In Contexts Of Transition: Reviewing Judicial Interpretation From R V Drybones To R V Montour, Joshua Nichols

Osgoode Hall Law Journal

Since the Truth and Reconciliation Commission of Canada's call in 2015 for the adoption and implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration), Canada has seen significant legislative developments. Notably, the Declaration of the Rights of Indigenous Peoples Act (DRIPA) in British Columbia, the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIPA) at the federal level, and subsequent amendments to the Interpretation Act in British Columbia have introduced innovative frameworks for procedural implementation. However, these legislative actions pose unique challenges, particularly in their interpretation by the judiciary.

This paper navigates through …

Teaching At The Intersection Of Federal Indian Law And Environmental Law Courses, Mia Montoya Hammersley, Vanessa Ann Racehorse, Heather Tanana, Nadine Padilla, Gerald Torres

Publications

A discussion of the important role of Federal Indian Law in the practice of environmental and natural resources law and guidance on incorporating this intersection into traditional environmental law courses and curricula.

The North American Gap Ungulates Must Migrate Physically And Legally: Elk As A Case Study, Alex Wendlandt

Wyoming Law Review

Humans have tracked elk hoof prints in North America since ancient times, recognizing the significance of these migratory ungulates in culture, mythology, dietary value, and utility. As migratory ungulates, elk respond to changes in their environment by migrating to and from their summer and winter ranges. Today, elk migrations continue across the jurisdictional boundary of the northern United States and southern Canada, spreading ecological and economic benefits with each track they make. Unfortunately, ungulate migration is an “endangered phenomenon” due to loss of connectivity and loss of habitat. While the United States and Canada have acknowledged the importance of, and …

Never Again: Zionism And The Jewess, Rona Kaufman

FIU Law Review

The State of Israel was established, in part, to ensure that Jews would never again be killed with impunity. More specifically, the State of Israel was established to ensure that never again would Jewish women and girls be systematically raped, assaulted, violated, and mutilated in a pogrom-like attack against the Jewish people. It is well known that the sweep of history connects Jews with the land of Israel from ancient times to today and serves as an important foundation for political Zionism. Less understood is that the atrocities against Jewish women and girls, committed over thousands of years and across …

Contested Sovereignty And Jurisdictional Flux In Oklahoma Indian Country 2025, Darla Jackson

Other Faculty Publications

No abstract provided.

The Unenforceable Indian Trust, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

This Essay explores the Indian trust relationship in light of recent decisions, especially Arizona v. Navajo Nation, that severely limit the judicial enforcement of federal trust responsibilities. Given the built-in tension between the trust responsibility and self-determination, periodic reassessment of the role and power of the Indian trust is perhaps inevitable. The Supreme Court's attack on meaningful enforcement of the trust responsibility is deeply problematic in that it puts tribes in the position of getting neither the benefits of a special Indian trust nor those principles that are supposed to govern trusts in general. But the Court is not …