Indigenous, Indian, and Aboriginal Law Commons^™

Child-Taking Justice And The Federal Indian Boarding School Initiative, Diane Marie Amann

Scholarly Works

The focus of this article is the 2022–2024 Federal Indian Boarding School Initiative undertaken the U.S. Executive Branch. The article chronicles this three-year process, which included sessions with survivors and their descendants, and which resulted in a two-volume report, in an apology by President Joe Biden, and in designation of a national memorial at one of the most notorious school sites. This article examines the initiative as an example of “child-taking justice”; that is, as a process of what is called “transitional justice”, done in an effort to redress the takings of children from their community, followed by efforts to …

Statutes And Special Interests, Kirsten Matoy Carlson

Northwestern University Law Review

Who really decides what statutes say? Most Americans think that special interests play an outsized role in our lawmaking processes. Yet empirical studies have produced little evidence that special interests get everything, or even most of, what they ask for from Congress. This Article takes an innovative new approach to tackling the difficult question of how advocates influence legislation. It presents the first comprehensive empirical study of how advocates influence the law through amendments in the legislative process. The Article analyzes an original dataset of 2,137 witnesses and their testimony at referral hearings on 108 Indian-related bills in the 97th …

Indigenous Peoples In International (Treaty) Diplomacy, Kristen A. Carpenter

Publications

International diplomacy has traditionally been considered the exclusive prerogative of states, who engage with each other on matters of peace, conflict, and trade with an eye to national interests and global wellbeing. This is one of a series of works considering "Indigenous Diplomacy"—a practice in which Indigenous Peoples engage with states, as well as other Indigenous Peoples, groups, and individuals in bilateral and multilateral settings, informed by Indigenous values, to advance rights, relationships, and remedies, as well as peace and security. This Article examines one category of Indigenous Diplomacy, namely the diplomatic processes surrounding modern and contemporary international treaties. With …

The Process Before The Promise: Ensuring Indigenous Recognition From The Chilean Constitution, Michaela Mazzeo

William & Mary Bill of Rights Journal

Part I of this Note provides a background and overview of the relatively recent surge in the constitutionalization of indigenous rights and recognition in Latin America, and the state of constitutional reform in Chile. Part II lays out a theoretical understanding of the powers of a constitution as a mechanism for societal reformation and as a platform for bringing legal claims, as played out in Brazil and Bolivia. Part III demonstrates the ways in which practical manifestation of that theoretical power stops short. More specifically, both intentional and incidental barriers dampen the effectiveness of the constitutional mechanism for ensuring indigenous …

Ogoni Activism And Access To Remedy: Business And Human Rights From The Bottom Up, Ayodeji Kamau Perrin

Faculty Scholarship

Do court victories result in social change? Can victories in court result in losses outside of court? If victories in court are no guarantee of victory outside of court, how much worse are court defeats? This Article explores these questions in part through analyzing Ogoni litigation against Royal Dutch/Shell. In 2002, Esther Kiobel and several co-plaintiffs tried to hold Royal Dutch/Shell accountable for its role in the death of Kiobel’s husband and for wider corporate abuses and related state human rights violations in Ogoniland. But in 2013, a unanimous United States Supreme Court held that the Alien Tort Statute (ATS) …

Indigenous Knowledge As Evidence In Federal Rule-Making, Edward Randall Ornstein

University of Miami Law Review

Recent and historic federal guidance instructs agencies to consider Indigenous Knowledge in decision-making where it is available. However, tribal advocates are faced with many hurdles, in the form of “information quality” criteria, which requires the collection and dissemination of Indigenous Knowledge to conform to a complex set of procedural rules before agencies may be willing to consider it as evidence for rule-making. This Article seeks to define Indigenous Knowledge, highlight the hurdles to its implementation by federal agencies, and equip tribal advocates and officials with strategies and a demonstrative example of best practices for the packaging and presentation of Indigenous …

Seeding A Movement: Indigenous Food Sovereignty, Mariaelena Huambachano

University of Miami Law Review

For many Indigenous peoples, well-being is bound up with and inseparable from the natural world. But since colonialism, Indigenous traditions and access to traditional foods or foodways have been disrupted, imperiling their health and well-being. In this Article, I discuss the role of Indigenous cosmovision/worldview and Indigenous Food Sovereignty in achieving environmental justice. Specifically, in this Article, I discuss that despite, or perhaps because of, efforts to deny Indigenous peoples’ access to healthy and culturally appropriate foods, Indigenous Food Sovereignty took a rise of preciousness in informing natural regenerative food systems, and ultimately, “holistic/collective well-being.”

Green Colonialism: Sidelined While On The Front Lines, M. Alexander Pearl

Faculty Articles

No abstract provided.

The Never-Ending Struggle For Tribal Fishing Rights, Adam Crepelle

Faculty Publications & Other Works

The World Trade Organization’s 2022 Agreement on Fisheries Subsidies failed to acknowledge Indigenous rights. This is problematic, particularly in the United States where tribes have constitutionally recognized sovereignty. Three tribes located within California have taken it upon themselves to assert their sovereignty by creating the United States’ first Indigenous Marine Stewardship Area (IMSA). While the tribes’ jurisdictional power over the IMSA is unclear, the tribes are in the initial stages of comanaging the area with the state of California. Collaborations based upon mutual respect are likely to produce positive results for Indigenous Peoples, the surrounding jurisdiction, and the environment.

Tribal Identity And The Rise Of The American Indian/Alaskan Native Population, Angel M. Stevens

Political Science Theses and Capstones

Today, most tribal nations in the United States identify by federal recognition, yet on the American Community Survey, American Indian/Alaskan Native respondents can self-identify as a member of a specific tribal nation. Most researchers argues that this tribal identification fortifies the reflection of the American Indian/Alaskan Native identity. There are 574 federally recognized tribes in the United States today. Between 2000-2020, the US Census Bureau and the American Community Survey noted a significant surge in the American Indian/Alaskan Native population. This population growth went from a mere 2 million to almost 10 million in a 20-year time span. In this …

American Declaration On The Rights Of Indigenous Peoples, Organization Of American States. General Assembly.

AALL Legal Website of the Month

The American Declaration on the Rights of Indigenous Peoples was adopted at the Third Plenary Session of the Organization of American States (OAS) General Secretariat held on June 15, 2016. The indigenous peoples of the Americas are culturally distinct groups who maintain an ancestral bond to the lands where they live or wish to live. Also, the Indigenous peoples of the Americans have the right to live in harmony with nature and to a healthy, safe, and sustainable environment, essential conditions for the full enjoyment of the right to life, to their spirituality, world view and to collective well-being.

A Tribe Divided: The Threat Of The Loss Of Tribal Autonomy And Culture Facing Transnational Tribes On The Northern And Southern Borders Of The United States, Jacob Moeller

Vanderbilt Journal of Transnational Law

Indigenous peoples in the northern and southwestern regions of the United States face challenges to the preservation of their cultures, economies, governments, and family relations as a result of the international borders that have bisected their traditional lands. While there is a history of treatymaking and governmental policy attempting to address these issues, the lack of an effective solution and concrete. border policy for tribe members in these regions leaves them without recourse. Some scholars suggest universal US citizenship for tribe members, others suggest tribe-specific legislation, and some even suggest that the tribes pursue litigation against the United States to …

Man Camps And Bad Men: Litigating Violence Against American Indian Women, Ana Condes

Northwestern University Law Review

The crisis of sexual violence plaguing Indian Country is made drastically worse by oil-pipeline construction, which often occurs near reservations. The “man camps” constructed to house pipeline workers are hotbeds of rape, domestic violence, and sex trafficking, and American Indian women are frequently targeted due to a perception that men will not be prosecuted for assaulting them. Victims have little recourse, facing underfunded police departments, indifferent prosecutors, and a federal government all too willing to turn a blind eye to the ongoing violence.

This Note proposes a litigation strategy for tribes to address the crisis and compel federal action. Litigation …

Living In Two Worlds, Elizabeth Kronk Warner

Utah Law Faculty Scholarship

Anti-racism calls us to work toward ending racial hatred, bias, systemic racism, and the oppression of marginalized groups. For many of us working in higher education leadership, this means that we are actively creating space for marginalized voices both in classrooms and through research. But who should be included is not always a question with a clear answer. Additionally, because of the complexity of identity, not all members of a marginalized community may express themselves in a monothetic way. This essay examines such a group possessing a complex identity – Indigenous people, from my personal lived experience. The essay explores …

A Familiar Crossroads: Mcgirt V. Oklahoma And The Future Of The Federal Indian Law Canon, Dylan R. Hedden-Nicely

Articles

Federal Indian law forms part of the bedrock of American jurisprudence. Indeed, critical parts of the pre-civil war constitutional canon were defined in Federal Indian law cases that simultaneously provided legal justification for American westward expansion onto unceded Indian lands. As a result, Federal Indian law makes up an inextricable part of American rule of law. Despite its importance, Federal Indian law follows a long and circuitous road that requires "wander[ing] the maze of Indian statutes and case law tracing back [over] 100 years." That road has long oscillated between two poles, with the Supreme Court sometimes applying foundation principles …

Customary Law Of Indigenous Communities: Making Space On The Global Environmental Stage, Melissa L. Tatum

Michigan Journal of Environmental & Administrative Law

The high stakes often involved in controversies regarding who owns valuable natural resources and who has the authority to regulate environmental contaminants have resulted in fierce legal battles and struggles to establish and define international principles of law. Grand theoretical debates have played out on the international stage regarding the principle of free, prior, and informed consent and the legal contours of corporate social responsibility. Meanwhile, often under the radar, Indigenous people around the world have worked to create a sustained niche for their community and culture in the face of exploitation and environmental devastation at the hands of the …

Implementing The United Nations Declaration On The Rights Of Indigenous Peoples In The United States: A Call To Action For Inspired Advocacy In Indian Country., Kristen Carpenter, Edyael Casaperalta, Danielle Lazore-Thompson

University of Colorado Law Review Forum

No abstract provided.

Cultural Linguistics And Treaty Language: A Modernized Approach To Interpreting Treaty Language To Capture The Tribe's Understanding, Barbara Cosens

Articles

Language is a reflection of a thought world. A worldview that has been shaped by place to describe one's identity in space and time does not equate to species relatedness as a default to know one another. In the legal system of the United States, there is acknowledgement of treaties in colonized lands that there are rights granted from the tribes and not to them, and those rights are land-based. Yet, the Indigenous voice is dead before arrival, before it enters the room of science, justice, academe, or otherwise. The exclusion of Indigenous peoples at the table of knowledge and …

The Historical Evolution Of The Methodology For Quantifying Federal Reserved Instream Water Rights For American Indian Tribes, Dylan R. Hedden-Nicely

Articles

From the earliest days of their relationship with the United States, the tribes from the region today referred to as the Northwestern United States have been steadfast in their effort to protect the land, waters, plants, and animals of their traditional homelands. That effort is not coincidental; North America's indigenous people have a singular relationship to the environment they have been a part of for millennia. In particular, they have relied on the streams of their territory for food, fiber, transportation, recreation, cultural, and spiritual sustenance. As a result, through litigation, restoration, and conservation management, tribes have focused on maintaining …

Indigenous Rights And Climate Change: The Influence Of Climate Change On The Quantification Of Reserved Instream Water Rights For American Indian Tribes, Dylan R. Hedden-Nicely

Articles

The people indigenous to the Western portion of the lands now referred to as North America have relied on aquatic species for physical, cultural, and spiritual sustenance for millennia. Such indigenous peoples, referred to in the American legal system as Indian tribes, are entitled to water rights for fish habitat pursuant to the Winters Doctrine, which holds that the federal government impliedly reserved water rights for tribes when reservations were created. Recently, the methodology for quantifying these rights has been the Instream Flow Incremental Methodology (IFIM) and/or one of its major components, the Physical Habitat Simulation Model (PHABSIM). These models …

The Contemporary Methodology For Quantifying Reserved Instream Flow Water Rights To Support Aquatic Habitat, Dylan R. Hedden-Nicely

Articles

Since time immemorial, indigenous people have relied on the streams of their territory for food, fiber, transportation, recreation, cultural, and spiritual needs. Accordingly, tribal people-particularly those in the region now called the Northwestern United States-placed singular emphasis on preserving their traditional subsistence culture when negotiating with the United States during the reservation era. Although rarely expressed in these treaties, the tribes are nonetheless entitled to water rights sufficient to fulfill these traditional subsistence treaty rights. Of the suite of water rights to maintain traditional uses of water, likely the most commonly claimed is for water to maintain fish habitat. A …

Cultural Linguistics And Treaty Language: A Modernized Approach To Interpreting Treaty Language To Capture The Tribe's Understanding, Dylan R. Hedden-Nicely

Articles

Language is a reflection of a thought world. A worldview that has been shaped by place to describe one's identity in space and time does not equate to species relatedness as a default to know one another. In the legal system of the United States, there is acknowledgement of treaties in colonized lands that there are rights granted from the tribes and not to them, and those rights are land based. Yet, the Indigenous voice is dead before arrival, before it enters the room of science, justice, academe, or otherwise. The exclusion of Indigenous peoples at the table of knowledge …

(Indigenous) Language As A Human Right, Kristen Carpenter, Alexey Tsykarev

Publications

The United Nations General Assembly has proclaimed 2022-2032 as the International Decade of Indigenous Languages. Building on lessons of the International Year of Indigenous Languages of 2019, the Decade will "draw attention to the critical loss of indigenous languages and the urgent need to preserve, revitalize and promote indigenous languages." These actions are necessary, in part, because existing laws and policies have proven inadequate to redress the legacy of state suppression of indigenous languages or ensure nondiscrimination in contemporary usage. In light of the International Year and Decade, this Article explores the rights of indigenous peoples to "use, revitalize, and …

Not Yet America's Best Idea: Law, Inequality, And Grand Canyon National Park, Sarah Krakoff

University of Colorado Law Review

No abstract provided.

Creative And Responsive Advocacy For Reconciliation: The Application Of Gladue Principles In Administrative Law, Andrew Martin

Articles, Book Chapters, & Popular Press

A s a response to the estrangement and alienation of Indigenous peoples from the Canadian justice system, Gladue principles are central to reconciliation in sentencing and other criminal law contexts. However, the role of Gladue principles in administrative law more broadly remains uncertain. In this paper, I argue that the factors underlying Indigenous peoples’ estrangement and alienation from the justice system indicate estrangement and alienation from the administrative state itself, and thus Gladue principles appropriately apply in administrative law contexts. Using the results of a comprehensive search of reported decisions by tribunals and by courts on judicial review, I analyze …

Not Yet America's Best Idea: Law, Inequality, And Grand Canyon National Park, Sarah Krakoff

Publications

Even the nation’s most cherished and protected public lands are not spaces apart from the workings of law, politics, and power. This Essay explores that premise in the context of Grand Canyon National Park. On the occasion of the Park’s 100th Anniversary, it examines how law — embedded in a political economy committed to rapid growth and development in the southwestern United States — facilitated the violent displacement of indigenous peoples and entrenched racialized inequalities in the surrounding region. It also explores law’s shortcomings in the context of sexual harassment and discrimination within the Park. The Essay concludes by suggesting …

Envisioning Indigenous Community Courts To Realize Justice In Canada For First Nations, Angelique Eaglewoman

Faculty Scholarship

Through European colonization in North America, the time-honored rule of law, or good way of life, in Indigenous communities was displaced with external forums and processes, primarily from the British juridical traditions. In contemporary Canada, the use of external laws as a tool of colonization and the injustice experienced by Aboriginal peoples in Canadian courts has been the focus of media attention, policy papers, and legal reports for decades. The Canadian justice system is viewed by many as external and a means of subjugation for First Nation, Métis and Inuit peoples. As the Canadian government has attempted to come to …

Environmental Justice And The Possibilities For Environmental Law, Sarah Krakoff

Publications

Climate change and extreme inequality combine to cause disproportionate harms to poor communities throughout the world. Further, unequal resource allocation is shot through with the structures of racism and other forms of discrimination. This Essay explores these phenomena in two different places in the United States, and traces law’s role in constructing environmental and economic vulnerability. The Essay then proposes that solutions, if there are any to be had, lie in expanding our notions of what kinds of laws are relevant to achieving environmental justice, and in seeing law as a possible tactic for instigating broader social change but not …

Tenth Anniversary Of The University Of Idaho's Native Law Program, Dylan R. Hedden-Nicely

Articles

No abstract provided.

Welcome From The Chair Of The Indian Law Section, Dylan R. Hedden-Nicely

Articles

No abstract provided.