Indigenous, Indian, and Aboriginal Law Commons^™

Connecting The Dots Between The Constitution, The Marshall Trilogy, And United States V. Lara: Notes Toward A Blueprint For The Next Legislative Restoration Of Tribal Sovereignty, Ann E. Tweedy

University of Michigan Journal of Law Reform

This law review Article examines: (1) the underpinnings of tribal sovereignty within the American system; (2) the need for restoration based on the Court's drastic incursions on tribal sovereignty over the past four decades and the grave circumstances, particularly tribal governments' inability to protect tribal interests on the reservation and unchecked violence in Indian Country, that result from the divestment of tribal sovereignty; (3) the concept of restoration as illuminated by United States v. Lara, and finally (4) some possible approaches to partial restoration.

The Article first evaluates the constitutional provisions relating to Indians and the earliest federal Indian law …

Rhetoric Versus Reality: The Jurisdiction Of Rape, The Indian Child Welfare Act, And The Struggle For Tribal Self-Determination, Maire Corcoran

William & Mary Journal of Race, Gender, and Social Justice

This note examines the rape crisis affecting Native American women today and the jurisdictional issues that affect how and whether tribes may prosecute and punish rapists. This note also examines the efficacy of the Indian Child Welfare Act (ICWA) in preventing inappropriate removal of Native children from their tribal environment. A comparison of these two subjects reveals that, although tribes are theoretically experiencing an era of tribal "self-determination," federal Indian law and policy, both old and new, continue to prevent tribes from achieving health and independence. Ultimately, the note concludes that a true solution to the problems affecting tribes can …

From Conflict To Cooperation: State And Tribal Court Relations In The Era Of Self-Determination, Aliza Organick, Tonya Kowalski

Faculty Scholarship

State and Tribal sovereigns have historically had a tense relationship, beginning in colonial times, when states vied with the federal government for trading rights and for control of Indian lands. Today, that tension still expresses itself in matters such as gaming compacts, criminal and civil jurisdiction, and taxation, to name just a few. While different sovereigns within a federal system may always vie for resources and power to some extent, it is time for states and Tribes to focus on what a more mutually supportive relationship with Tribal communities has to offer. This Essay explores the history of the two …

Assumptions Regarding Indians And Judicial Humility: Thoughts From A Property Law Lens, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

Negative assumptions regarding Indians can be found in the recent decisions of the U.S. Supreme Court, and attention to these assumptions is required if courts are to base their decisions on how Indians and non-Indians actually impact each other. This brief article uses a property and liability rules framework to argue for judicial restraint when considering cases that could limit tribal sovereignty.

Sorting Out Civil Jurisdiction In Indian Country After Plains Commerce Bank: State Courts And The Judicial Sovereignty Of The Navajo Nation, Dale Beck Furnish

American Indian Law Review

No abstract provided.

Reinstating Treaty-Making With Native American Tribes, Phillip M. Kannan

William & Mary Bill of Rights Journal

No abstract provided.

Indigenous Recognition In International Law: Theoretical Observations, Patrick Macklem

Michigan Journal of International Law

This Essay addresses this question in the context of the evolving status of indigenous peoples in international law. International instruments vest rights in indigenous peoples, and establish indigenous peoples as international legal actors to whom States and other international legal actors owe legal duties and obligations. These developments began between the First and Second World Wars, when the International Labour Organization (ILO) began to supervise indigenous working conditions in colonies. They continued after the Second World War with ILO Conventions No. 107 and 169, which vested rights in indigenous populations located in States that are a party to their terms. …

Tribal Nation Economics: Rebuilding Commercial Prosperity In Spite Of U.S. Trade Restraints–Recommendations For Economic Revitalization In Indian Country, Angelique Eaglewoman

Faculty Scholarship

Tribal commerce created the current highways that stretch from coast-to-coast in North America today. The roads that are traveled by semi-trucks full of cargo, grocery produce, and all manner of commercial goods are on top of the ancient trade routes Natives have traveled for centuries. Unfortunately, the history and sophistication of Native commercial activities have been largely suppressed and left out of the story of the North American continent as Euro-Americans rewrote the continent’s history to reflect the glorification of colonization. The truth is that there was no need for the 'rugged pioneer' to cut through tall grass to head …

Indigenous Self-Determination: A Global Perspective, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

The concepts of self-determination and sovereignty, from an Indigenous perspective, embrace values, attitudes, perspectives, and actions. Of course, as a result of the historical phenomenon known as colonialism, in which expansive European states sought to dominate the rights, resources, and lands of aboriginal people worldwide, one cannot discuss Indigenous self-determination and sovereignty without some corresponding discussion of how states and their policy makers understand these politically charged terms as well.

I have been thinking, acting, researching, and writing on these two vital concepts, intergovernmental relations, critical legal theory, and comparative Indigenous politics for nearly two decades. Along with this, I …

Amended And Restated Gila River Indian Community Water Rights Settlement Agreement Oct. 21, 2005, Amendment No. 2, 2007, Gila River Indian Community, Et Al

Native American Water Rights Settlement Project

Amended and Restated Gila River Indian Community Water Rights Settlement Agreement Oct. 21, 2005, Amendment No. 2, 2007. Amendment 2 replaces 3 exhibits with documents filed in or by the courts: 1) Attachment 1 - replacing Exhibit 25.18.A1 - “Stipulation of the Parties to the Amended and Restated Gila River Indian Community Water Rights Settlement Agreement Setting forth the Terms of the Settlement (as filed with the Gila Adjudication Court on May 23, 2006”; 2) Attachement 2 - replacing Exhibit 25.18.A2 – “Judgment and Decree”; and 3) Attachement 3 - Exhibit 25.18.B “Order Pursuant to Stipulation issued by the Globe …

Climate Justice: The Next Movement [Outline], Richard J. Lazarus

The Climate of Environmental Justice: Taking Stock (March 16-17)

Presenter: Richard J. Lazarus, Professor of Law, Georgetown University Law Center

2 pages.

A Race Or A Nation? Cherokee National Identity And The Status Of Freedmen's Descendants, S. Alan Ray

Michigan Journal of Race and Law

This Article examines the Cherokee Freedmen controversy to assess whether law and biology can function as sufficient models for crafting Cherokee identity at this crucial moment in the tribe's history. The author will argue that while law and biology are historically powerful frames for establishing tribal self-identity, they are inadequate to the task of determining who should enjoy national citizenship. The wise use of sovereignty, the author suggests, lies in creating a process of sustained dialogical engagement among all stakeholders in the definition of Cherokee citizenship on the question of Cherokee identity. This dialogue should ideally have been undertaken before …

Changing Territoriality, Fading Sovereignty, And The Development Of Indigenous Group Rights, Austen L. Parrish

Articles by Maurer Faculty

For much of the 19th and 20th Centuries, the international community resisted the notion of indigenous peoples' rights. In recent years, however, this has changed. The emergence of indigenous rights in international law may finally be upon us. At the very least, the language of international instruments and certain court decisions indicate a new era is emerging in which international law is beginning to recognize the rights of indigenous peoples. And the public seems increasingly aware of the challenges facing indigenous groups. Despite a past where victories for indigenous peoples' rights have been few, scholars are cautiously optimistic for the …

Indigenous Law And Its Contribution To Global Pluralism, James Anaya

Publications

No abstract provided.

Conference Transcript: The New Realism: The Next Generation Of Scholarship In Federal Indian Law, Sarah Krakoff

Publications

No abstract provided.

A Tale Of Conflicting Sovereignties: The Case Against Tribal Sovereign Immunity And Federal Preemption Doctrines Preventing States' Enforcement Of Campaign Contribution Regulations On Indian Tribes, Paul Porter

University of Michigan Journal of Law Reform

This Note will discuss whether Indian tribes can assert tribal sovereign immunity to avoid compliance with state campaign finance regulation and whether such regulations should be preempted by federal law. Tribal sovereign immunity is not an enshrined constitutional imperative; it exists only under federal common law and can be limited by the courts from blocking state suits to enforce campaign finance regulations against tribes. This Note will also argue that state campaign finance regulations should not be preempted by federal law because states have a compelling interest in protecting their political processes from corruption that outweighs tribal interests in flouting …

The Tribal Sovereign As Citizen: Protecting Indian Country Health And Welfare Through Federal Environmental Citizen Suits, James M. Grijalva

Michigan Journal of Race and Law

This Article suggests that federal environmental citizen suits can serve tribal sovereignty interests without presenting the legal risks tribes face when they attempt direct regulation of non-Indians. Section I briefly describes governmental regulatory roles tribes may play in the implementation of federal environmental law and policy. Section II overviews the conceptual and procedural framework for tribal claims as "citizens." Section III argues that in bringing environmental citizen suits, tribal governments exercise their inherent sovereign power and responsibility to protect the health and welfare of tribal citizens and the quality of the Indian country environment. Section IV concludes that, while suits …

The Virtues And Vices Of Sovereignty, Sarah Krakoff

Publications

American Indian tribal sovereignty is viewed very differently in the United States Supreme Court than it is in American Indian tribal nations. The United States Supreme Court, the progenitor of the legal doctrine of tribal sovereignty, appears skeptical of the doctrine's continuing viability. The Court is therefore veering away from any strong notion of retained inherent tribal sovereignty. American Indian tribes, the sources and perpetuators of de facto tribal sovereignty, are more committed than ever to enacting their sovereignty on the ground, as well as promoting and protecting its legal status in the courts and in Congress. There is an …

2005 Amended And Restated Gila River Indian Community Water Rights Settlement Agreement, Gila River Indian Community, Et Al

Native American Water Rights Settlement Project

Settlement Agreement: Amended and Restated Gila River Indian Community Water Rights Settlement Agreement (Oct. 21, 2005). Parties: Gila River Indian Community; US; AZ; Salt River Project Agricultural Improvement and Power District; Salt River Valley Water Users' Association; Roosevelt Irrigation District; Roosevelt Water Conservation District; Arizona Water Company; the Arizona cities of Casa Grande, Chandler, Coolidge, Glendale, Goodyear, Mesa, Peoria, Phoenix, Safford, Scottsdale, and Tempe; the Arizona towns of Florence, Mammoth, Kearny, Duncan and Gilbert; Maricopa-Stanfield Irrigation & Drainage District; Central Arizona Irrigation & Drainage District; Franklin Irrigation District; Gila Valley Irrigation District, San Carlos Irrigation & Drainage District; Hohokam Irrigation …

Surviving Racism And Sexual Assault: American Indian Women Left Unprotected, Talib Ellison

The Modern American

No abstract provided.

Re-Establishing The Sisseton-Wahpeton Oyate's Reservation Boundaries: Building A Legal Rationale From Current International Law, Angelique Eaglewoman

Faculty Scholarship

This article examines one tribal nation as an example of the many land loss issues facing Tribes at present. Through the example of the Sisseton-Wahpeton Oyate history of treaties, agreements, land cessions, and finally a federal ruling of reservation disestablishment, the policies of the United States regarding Indian lands will be shown. To reestablish the territorial boundaries of the Sisseton-Wahpeton Oyate, federal recognition is necessary in the United States. International law principles from the United Nations, the International Labor Organization, and the Organization of American States may provide legal support for the re-recognition of the reservation boundaries.

Keynote Address: 2004 American Indian Studies Consortium Annual Conference, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

This special issue of Wicazo Sa Review continues the theme of colonization/decolonization from the previous issue and contains transcriptions of two sessions of the 2004 American Indian Studies Consortium annual conference, entitled "Who Stole Indian Studies?" at Arizona State University. The articles add to our knowledge by contributing important discussions addressing such issues as empowerment, law, research ethics, Freedmen entitlements, reproductive rights, spiritual appropriation, and identity. The Consortium transcripts provide invaluable presentations by key native scholars about the past, present, and future of American Indian studies. Dr. David Wilkins provided the keynote address for the conference.

National Identity And Liberalism In International Law: Three Models, Justin Deystone

Publications

No abstract provided.

A Whole New Game: Recognizing The Changing Complexion Of Indian Gaming By Removing The "Governor's Veto" For Gaming On "After-Acquired Lands", Brian P. Mcclatchey

University of Michigan Journal of Law Reform

The recent explosive growth of the Indian gaming industry and judicial decisions analyzing a portion of the governing statute point to an inherent flaw in the mechanism provided by the Indian Gaming Regulatory Act (IGRA) for the establishment of off-reservation gaming enterprises. This Note argues for a reform of the so-called "after-acquired lands" provision of IGRA, which would remove the governor's concurrence requirement and place the decision to allow Indian gaming off-reservation into the negotiating process between states and tribes, as another term to be negotiated between sovereigns. Such a reform would allow states and tribes alike to extract their …

Tribal Jurisdiction And Domestic Violence: The Need For Non-Indian Accountability On The Reservation, Amy Radon

University of Michigan Journal of Law Reform

Domestic violence is a severe problem for tribes across the nation, as their female members are victimized at highly disproportionate rates compared to members of dominant society. Many tribes have sophisticated domestic violence codes to combat the problem, but they are powerless to prosecute the majority of those who will abuse Indian women: non-Indian men. In 1978 the Supreme Court stripped tribes of their power to prosecute non-Indians in criminal matters, which not only damaged tribal sovereignty but also meant the difference between a life free from abuse and one with constant fear, intimidation, and pain for Indian women.

The …

The Plight Of "Nappy-Headed" Indians: The Role Of Tribal Sovereignty In The Systematic Discrimination Against Black Freedmen By The Federal Government And Native American Tribes, Terrion L. Williamson

Michigan Journal of Race and Law

This Note concerns the role the government has played in the exclusion of Black Freedmen from Native American nations through its implementation and interpretation of the doctrine of tribal sovereign immunity ("tribal sovereignty" or "tribal immunity"). Part I discusses the background of the Freedmen within the Five Civilized Tribes and provides an overview of the doctrine of tribal sovereign immunity, including its role in the controversy concerning the status of Black Indians. Part II discusses the interpretations given to the doctrine of tribal sovereign immunity by United States courts and executive agencies and the effects of those interpretations on relations …

A Narrative Of Sovereignty: Illluminating The Paradox Of The Domestic Dependent Nation, Sarah Krakoff

Publications

For the last thirty years the Supreme Court has been adjusting the boundaries of American Indian tribal sovereignty. Some cases affirm tribal inherent powers, but recently the trend has been to limit those powers. Yet neither the Court nor the Congress, which can reverse Supreme Court decisions on questions of tribal sovereignty, has been informed about how these alterations to tribal powers actually affect American Indian tribes on the ground. This article provides that information by examining the interplay between Supreme Court decisions and the Navajo Nation's exercise of its sovereign governmental powers from 1970-2003. In the categories of general …

Reconciling The Paradox Of Tribal Sovereignty: Three Frameworks For Developing Indian Gaming Law And Policy, Steven Andrew Light, Kathryn R.L. Rand

Nevada Law Journal

No abstract provided.

Tribal Sovereignty Over Water Quality, Jessica Owley

Articles

No abstract provided.

Tohono O'Odham Settlement, Tonhono O'Odham Nation Et Al

Native American Water Rights Settlement Project

Settlement Agreement: Tohono O'odham Settlement (Apr. 30, 2003). Parties: Tohono O'odham Nation, AZ, US, Tucson, Asarco Inc., Farmers Investment Co., two allottee classes. The Settlement Agreement has been revised to eliminate any conflicts with PL 108-451. The parties are a part of the Gila River adjudication. The Nation has a water right of 79,200 acre-feet per year, sourced in ground and surface water. This water may be put to any use. The Nation may use the water off-reservation according to the attached contracts or pursuant to state law, but the uses must remain within the state. Provisions are made for …