Indigenous, Indian, and Aboriginal Law Commons^™

Treaty-Based Exclusions From The Boundaries And Jurisdiction Of The States, John W. Ragsdale Jr

Faculty Works

The Johnson County, Kansas codes officer, charged with the personal service of citations for the unlawful sale of fireworks on Shawnee Reserve 206, probably should have mailed them, as had been done in the past. On the other hand, Jim Oyler, Jr., who was fortunate to escape prosecution after pushing an official around and breaking his cell phone a year and a half earlier, probably should have shown restraint. Tensions run high on Lot 206, however, and restraint has seldom been the watchword. Jim Oyler, Jr., when confronting the officer on the roadway leading into the 94-acre parcel, asserted the …

Indigenous Nations As Reserved Sovereigns, David E. Wilkins

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

Some adhere to the idea that the federal government, as a democratic state founded on the rule of law, contains within its legal and political institutions and ideologies a framework that provides the necessary vaccines that will eventually cure the various and sundry indigenous ailments generated throughout American society by its social, economic, political and legal institutions.

By contrast, there are others who vigorously argue that the prevailing institutions of governance and law of the United States are incapable of providing justice to First Nations because they entail systems, ideologies, and values that represent non-Indians and thus they cannot possibly …

The Indigenous Vote: Protecting Or Endangering Sovereignty?, David E. Wilkins

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

Much ado has been made about the 2002 mid-term congressional and gubernatorial elections. Democrats are bemoaning the Republican's treble triumph—congressional control, an invigorated Bush administration, and conservative rule on the supreme court. Republicans are exulting in their perceived conservative mandate—to address the War on Terror, privatize Social Security, and roll back environmental regulations that are deemed overly restrictive of private and public property development. And the inconsistent American voter, depending on race, socio-economic status, and issue salience, seems either unenthusiastic, ambivalent, or wildly animated about politics.

Native State Lawmakers: Minimizing The Tribal Disadvantage, David E. Wilkins

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

Not surprisingly, most of these lawmakers are serving in western states where more than 80 percent of indigenous peoples live—Alaska is home to 11 Native lawmakers; Montana has elected seven; New Mexico's legislature now has five Indian legislators; Oklahoma, Arizona, and South Dakota each have three Indian representatives; Washington has two; and Colorado and North Dakota have one each. Eastern states also have indigenous representation: Maine has two representatives—a Penobscot and a Passamaquoddy; North Carolina's Lumbee tribe has a member in the state legislature; and Vermont has a lone Native member.

Our preliminary results give us reason to be moderately …

Memorandum Opinion Re Chippewa Cree Tribe-Mt Compact, Mt Water Court

Native American Water Rights Settlement Project

Memorandum Opinion re Chippewa Cree Tribe-MT Compact, MT Water Court: Procedural History, p. 1; Preliminary Review of Chippewa Cree Tribe – Montana Compact p. 11; Summary of Compact p. 12; Preliminary Conclusion, P. 16; Objections and Heightened Review, p. 17; Conclusion p. 43.

Not Because They Are Brown, But Because Of Ea*: Why The Good Guys Lost In Rice V. Cayetano, And Why They Didn't Have To Lose, Gavin Clarkson

Michigan Journal of Race and Law

Part II of this Article therefore reviews the history of Native Hawaiians in the broader context of the history of federal Indian law, focusing on the vacillating congressional policies regarding Indians and how those policies almost always treated Indian tribes as political entities rather than ethnic communities. Part III reviews and analyzes the procedural history of the Rice case and its resolution by the Supreme Court. Part IV concludes with the argument that constitutionally-permissible alternative methodologies exist for accomplishing the same objective of self-determination for Native Hawaiians

[Introduction To] Uneven Ground: American Indian Sovereignty And Federal Law, David E. Wilkins, K. Tsianina Lomawaima

Bookshelf

In the early 1970s, the federal government began recognizing self-determination for American Indian nations. As sovereign entities, Indian nations have been able to establish policies concerning health care, education, religious freedom, law enforcement, gaming, and taxation. Yet these gains have not gone unchallenged. Starting in the late 1980s, states have tried to regulate and profit from casino gambling on Indian lands. Treaty rights to hunt, fish, and gather remain hotly contested, and traditional religious practices have been denied protection. Tribal courts struggle with state and federal courts for jurisdiction. David E. Wilkins and K. Tsianina Lomawaima discuss how the political …

The Manipulation Of Indigenous Status: The Federal Government As Shape-Shifter, David E. Wilkins

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

"The federal-Indian relationship is like no other in the world. Indian tribes are denominated 'domestic-dependent nations' but their practical relationship with the United States 'resembles that of a ward to his guardian.' Indian tribes appear to have the same political status as the independent states of San Marino, Monaco, and Liechtenstein, yet they have little real self-government and seem to be forever mired in a state of political and economic pupilage."

This fifteen-year-old statement from Vine Deloria, Jr., the preeminent Indian political and legal scholar, still accurately reflects the convoluted nature of indigenous political, legal, and economic statuses in the …

"Invidious" American Indian Tribal Sovereignty: Morton V. Mancari Contra Adarand Constructors, Inc. V. Pena, Rice V. Cayetano, And Other Recent Cases, Frank Shockey

American Indian Law Review

No abstract provided.

Who Is An Indian? Searching For An Answer To The Question At The Core Of Federal Indian Law, Margo S. Brownell

University of Michigan Journal of Law Reform

The definition of Indian is the measure of eligibility for a variety of benefits and programs provided to Indians under federal law. There is confusion, however, at the core of efforts to define "Indian." This confusion raises many concerns about the role that government plays in defining "Indian." This Note surveys the most common definitions of "Indian" found in federal statutes, BIA regulations, and state laws. The author argues that the racial basis of many of these laws and regulations are unconstitutional and tread on the sovereignty of Indian tribes. She evaluates efforts of the federal government to avoid these …

Sovereignty And Sacred Land, Bardie C. Wolfe Jr., Oren Lyons

St. Thomas Law Review

I was pleased to come down here for several reasons: one being that my son is down here and I get a chance to say hello to him, and the other, to talk about the importance of not only sacred sites but the term sovereignty; tribal sovereignty. We know that sovereignty is an English term, a European term. It deals with sovereigns; it deals with kings; it deals with those who control everything. Sovereignty is something we learn from being in contact with these nations for so long, I think that the Haudenosaunee, also known as the Iroquois by the …

The United Tribe Of Shawnee Indians: Resurrection In The Twentieth Century, John W. Ragsdale Jr

Faculty Works

Tribal sovereignty is not necessarily a function of land area, population size or competitive significance. The essence lies in the freedom to make or recognize rules and principals of personal conduct and social order. This essential liberty springs from the community between particular people, their past, future and their sacred land base. The legislative history of the Federal Recognized Indian Tribe List Act of 1994 states that recognition of a tribe is critical, not just to the tribe's interests, but to the legitimacy of federal power, as the Constitution empowers Congress to legislate only with respect to Indian tribes rather …

An Inquiry Into Indigenous Political Participation: Implications For Tribal Sovereignty, David E. Wilkins

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

When we set out to examine the various forms and patterns of indigenous political participation in the three polities they are connected to—tribal, state, and federal—we are stepping into a most complicated subject matter. It is complicated in large part because Indians are citizens of separate extra-constitutional nations whose members have only gradually been incorporated in various ways by various federal policies and day to day interactions with non-Indians. Tribal nations, of course, have never been constitutionally incorporated and still retain their standing as separate political bodies not beholden to either federal or state constitutions for their existence.

A Constitutional Conundrum: The Resilience Of Tribal Sovereignty During American Nationalism And Expansion: 1810-1871, David E. Wilkins

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

Judge Michael Hawkins addresses a number of important issues in his essay on John Quincy Adams' evolving understanding and relationship with slavery and the variegated role that law played in the politics of slavery and the slavery of politics. The essay demonstrates the importance of human personality in influencing and being influenced by political and legal processes. At its heart, the Article is a legal and historical study of the moral dimension and inherent contradictions facing Adams, in particular, and the American Republic, in general, regarding the existence and persistence of the institution of slavery in a nation built upon …

"Merciless Indian Savages" And The Declaration Of Independence: Native Americans Translate The Ecunnaunuxulgee Document, John R. Wunder

American Indian Law Review

No abstract provided.

Surfing For Wampum: Federal Regulation Of Internet Gambling And Native American Sovereignty, Jeffrey A. Dempsey

American Indian Law Review

No abstract provided.

Protecting Native Americans: The Tribe As Parens Patriae, Cami Fraser

Michigan Journal of Race and Law

This Note argues that Tribes have parens patriae standing to protect their citizens through litigation on their behalf, even if not all of their citizens are engaged in the litigation. Part I examines the current requirements of parens patriae standing, as articulated by the Supreme Court. Part II briefly examines the nature of tribal sovereignty within American jurisprudence and concludes that parens patriae standing is a retained right of the Tribes. Part III examines the way in which the Federal District Courts have incorrectly handled tribal parens patriae standing. This section argues for a reexamination of Supreme Court doctrine when …

Sovereignty, A State Of Mind: A Thakiwa Citizen's Viewpoint, Dagmar Thorpe

American Indian Law Review

No abstract provided.

Sovereignty And Its Relevance To Native Americans In The Twenty-First Century, Hurst Hannum

American Indian Law Review

No abstract provided.

Ua Mau Ke Ea O Ka Aina I Ka Pono:Voting Rights And The Native Hawaiian Sovereignty Plebiscite, Troy M. Yoshino

Michigan Journal of Race and Law

Using the Native Hawaiian Sovereignty Plebiscite to investigate the complex interplay between race, nationalism, and the special purpose district exception, this Note chronicles the development of relevant legal doctrines and the history of the Native Hawaiians' quest for self-government in an attempt to untangle those issues. In doing so, this Note concludes that the Native Hawaiian Sovereignty Plebiscite was an unconstitutional method of securing sovereign rights for Native Hawaiians, but that a Native Hawaiian claim to at least some form of self-government is justified. As a result, this Note searches for a method that will guarantee self-government as well as …

Indigenous Nations And International Trade, Robert Berry

Librarian Publications

In an era where economic policy must be increasingly fashioned in global terms, the economies of Indigenous Nations in present-day Canada and the United States remain isolated from international commerce.These nations--once independent, now governed by a supervising state --in most cases cannot be said to enjoy evenan unhindered access to commerce within the states that surround them. Indeed, the insularity of the North American Indigenous Nations is a fundamental feature of their existence and, too, a formidable barrier to these nations' ability to establish vibrant and diversified economies.

This Note examines the central role that trade played in relations …

The Indigenous Peoples Of The Usa: Issues And Challenges Of Native Americans, David E. Wilkins

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

Vine Deloria, Jr., the most important Indian chronicler of indigenous political, legal, and religious experience in the U.S. in the last thirty years, noted recently that Indian life, particularly the experience of reservation-based tribal peoples, "has only the slightest resemblance to the conditions of three decades ago, and the current situation has elements of hope and portents of disaster." This observation is even more realistic as we sit at the dawn of the new millennium. The 560 indigenous polities in the U.S.—374 Indian nations, tribes, bands, communities, and Pueblos in the lower 48 states; 226 are Alaska Native villages and …

A Country Within A Country: Redrawing Borders On The Post-Colonial Sovereign State, Suzan Dionne Balz

Michigan Journal of Race and Law

This Essay seeks to identify the conflict that exists between the demands for self-governance by Canada's First Nations and the interests of the Canadian state. The author elucidates this conflict by identifying two major differences between the perspectives of Canada's First Nations' demands for self-governance and the interests of the Canadian state: the privileging of the collective versus the privileging of the individual, and the two very different notions of "territory." The author concludes that the doctrine of sovereign statehood as developed out of European Nationalism stands as an obstacle to the self-determination of non-western peoples such as the First …

[Introduction To] American Indian Sovereignty And The U.S. Supreme Court: The Masking Of Justice, David E. Wilkins

Bookshelf

"Like the miner's canary, the Indian marks the shift from fresh air to poison gas in our political atmosphere and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith, wrote Felix S. Cohen, an early expert in Indian legal affairs.

In this book, David Wilkins charts the "fall in our democratic faith" through fifteen landmark cases in which the Supreme Court significantly curtailed Indian rights. He offers compelling evidence that Supreme Court justices selectively used precedents and facts, both historical and contemporary, to arrive at decisions that have …

Validity Of A State Court's Exercise Of Concurrent Jurisdiction Over Civil Actions Arising In Indian Country: Application Of The Indian Abstention Doctrine In State Court, John J. Harte

American Indian Law Review

No abstract provided.

Spirituality, Culture And Tradition: An Introduction To The Role Of Tribal Courts And Councils In Reclaiming Native American Heritage And Sovereignty, Mark J. Wolff

St. Thomas Law Review

No abstract provided.

Tribal Courts: Providers Of Justice And Protectors Of Sovereignty, Frank Pommersheim

Faculty Publications

No abstract provided.

A Symposium On Tribal Courts: Introduction, Frank Pommersheim

Faculty Publications

No abstract provided.

The Challenge Of Indigenous Self-Determination, Russel Lawrence Barsh

University of Michigan Journal of Law Reform

The Earth Summit at Rio was the first global negotiation in which indigenous peoples participated directly. They did so with the aim of advocating land rights and greater self-determination in the fields of natural-resource management and development. They justified these claims by arguing that indigenous peoples are superior stewards of the land and that strengthening indigenous peoples' traditional economies would contribute to solving global ecological and economic problems. This approach succeeded all too well. Jaded diplomats and environmental ministers seized on the hopeful possibility that indigenous economics actually might work better than discredited socialism and overextended capitalism, and they invited …

Negotiated Sovereignty: Intergovernmental Agreements With American Indian Tribes As Models For Expanding First Nations’ Self-Government, David H. Getches

Publications

Constitutional issues related to First Nations sovereignty have dominated Aboriginal affairs in Canada for a considerable period. The constitutional entrenchment of Aboriginal self-government has, however, received a setback with the recent failure of the Charlottetown Accord in October of 1992. Nonetheless, day-to-day issues must be accommodated, even while this more fundamental constitutional question remains unresolved. This paper illustrates the American experience with negotiated intergovernmental agreements between tribes and individual states. These agreements have, for example, resolved jurisdictional disputes over taxation, solid waste disposal, and law enforcement between state governments and tribal authorities. The author suggests that these intergovernmental agreements in …