Indigenous, Indian, and Aboriginal Law Commons^™

Failed Protectors: The Indian Trust And Killers Of The Flower Moon, Matthew L.M. Fletcher

Michigan Law Review

Review of David Grann's Killers of the Flower Moon: The Osage Murders and the Birth of the FBI.

Truth Be Told: Redefining Relationships Through Indigenous Research, Deborah Mcgregor

Articles & Book Chapters

The recently released report of the Truth and Reconciliation Commission of Canada (TRC) contains recommendations which seek to deconstruct the highly colonial relationship between Indigenous peoples and the Canadian state. This chapter explores how the TRC’s findings might be applied in transforming the theory and practice of academic research as part of renewing and re-defining relationships between Indigenous peoples and broader Canadian society. I will address the fundamental bias that exists in the historical and contemporary scholarship that either explicitly or implicitly frames Indigenous peoples as “problems” to be solved.

Supreme Court Of Canada Cases Strengthen Argument For Municipal Obligation To Discharge Duty To Consult: Time To Put Neskonlith To Rest, Angela D’Elia Decembrini, Shin Imai

Articles & Book Chapters

Can municipalities infringe Aboriginal or treaty rights without consulting the affected Indigenous group? In Neskonlith Indian Band v. Salmon Arm (City), the British Columbia Court of Appeal answered this question in the affirmative, finding that the city of Salmon Arm did not need to consult the Neskonlith First Nation about impacts from the construction of a shopping mall. In what was technically obiter dicta, the Court permitted the municipal project to proceed, and told the First Nation that its only recourse was to complain to the provincial government in a separate proceeding.

The Causal Effect: Implications Of Chronic Underfunding In School Systems On The Navajo Reservation, Adriana M. Orman

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

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 …

America's Quiet Legacy Of Native American Voter Disenfranchisement: Prospects For Change In North Dakota After Brakebill V. Jaeger, Hannah Stambaugh

American University Law Review

No abstract provided.

If There Can Only Be ‘One Law’, It Must Be Treaty Law. Learning From Kanawayandan D’Aaki, Dayna Nadine Scott, Andrée Boisselle

Articles & Book Chapters

The paper stems from a research collaboration with the Anishini community of Kitchenuhmaykoosib Inninuwug (KI), known as the people of Big Trout Lake in the far north of Ontario. In the face of renewed threats of encroachment by extractive industries onto their homelands, our research team visited the community on the invitation of leadership in 2017. The community was engaged in strategic planning and reflection on the work that they have done in recent years to articulate and record their own laws for the territory, and to gain recognition for those laws from settler governments. Between 2008 and 2018, …

The History And Promise Of Shared Space In A Section 35 World, Signa A. Daum Shanks

Articles & Book Chapters

When non-Indigenous people made their way to North America, both conflicting and complementary social norms existed between explorers and the land’s original inhabitants. Capable of agreeing with, often challenging, and regularly borrowing each other’s ideas, people of early post-contact times demonstrated how they could have different values and processes but could still cooperate. So while colonialism certainly stifled, if not terminated, some Indigenous processes, local concepts still often prevailed and governed all those who inhabited a space—including the non-Indigenous. Canada’s post-contact past is as much about the adherence to Indigenous jurisdiction as it is about an external force’s interpretation of …

Social Work As An Important Collaborator In Transdisciplinary Public Health Law: Why Does It Matter And Where Does It Fit?, Heather A. Walter-Mccabe

Law Faculty Research Publications

No abstract provided.

Waiving Federal Sovereign Immunity In Original Actions Between States, Sandra B. Zellmer

Faculty Law Review Articles

There are tremendous disparities between high stakes original actions between states before the US. Supreme Court, where there is no waiver of federal sovereign immunity, and other types of cases in the lower courts, where a plethora of immunity waivers allow states and other parties to seek relief from the federal government for Fifth Amendment takings, unlawful agency action, and tort claims. Federal actions or omissions are often at the heart of the dispute, and federal involvement may be crucial for purposes of providing an equitable remedy to the state parties, but there is no reliable mechanism for bringing the …

Book Review: John Borrows, Law's Indigenous Ethics, Karen Drake

Articles & Book Chapters

No abstract provided.

The Louisiana Purchase: Indian And American Sovereignty In The Missouri Watershed, Kent Mcneil

Articles & Book Chapters

Like a historical mantra repeated time and again, it is asserted that the Louisiana Purchase doubled the size of the United States. As this assertion takes for granted that the Purchase included the entire Missouri watershed, it rests on the assumption that France had a valid title thereto because, as a matter of common sense and international law, France could only convey title to territory that it actually owned. But what basis is there for the assumption that France had sovereign title to the vast territory drained by the Missouri River that stretches from the Mississippi River to the Rocky …

[Introduction To] Documents Of Native American Political Development: 1933 To Present, David E. Wilkins (Editor)

Bookshelf

Before Europeans arrived in what is now known as the United States, over 600 diverse Native nations lived on the same land. This encroachment and subsequent settlement by Americans forcibly disrupted the lives of all indigenous peoples and brought about staggering depopulation, loss of land, and cultural, religious, and economic changes. These developments also wrought profound changes in indigenous politics and longstanding governing institutions. David E. Wilkins' two-volume work Documents of Native American Political Development traces how indigenous peoples have maintained and continued to exercise a significant measure of self-determination contrary to presumptions that such powers had been lost, surrendered, …

Privatizing The Reservation?, Kristen A. Carpenter, Angela R. Riley

Publications

The problems of American Indian poverty and reservation living conditions have inspired various explanations. One response advanced by some economists and commentators, which may be gaining traction within the Trump Administration, calls for the “privatization” of Indian lands. Proponents of this view contend that reservation poverty is rooted in the federal Indian trust arrangement, which preserves the tribal land base by limiting the marketability of lands within reservations. In order to maximize wealth on reservations, policymakers are advocating for measures that would promote the individuation and alienability of tribal lands, while diminishing federal and tribal oversight.

Taking a different view, …

The Universal Periodic Review As A Form Of Alternative Dispute Resolution: Strengths & Shortcomings, Sara Alvarez

Cardozo Journal of Conflict Resolution

No abstract provided.

Tribal Sovereignty And Online Gaming: Fantasy Sports Offer Tribes What Other Games Do Not, Cody Wilson

SMU Law Review

No abstract provided.

Sports Betting And Indian Gaming: Should Tribal Casinos Get In The Game?, Kathryn R. L. Rand, Steven Andrew Light

Law Faculty Publications

No abstract provided.

Beyond Vawa: Protecting Native Women From Sexual Violence Within Existing Tribal Jurisdictional Structures, Jessica Allison

University of Colorado Law Review

One in three American Indian women will be raped in her lifetime. This rampant assault is only exacerbated by the fact that tribes have not been able to prosecute non- Indians for any crime, including rape, since the 1970s. The Violence Against Women Reauthorization Act of 2013 took a small step toward filling this jurisdictional hole by creating provisions under which tribes can prosecute certain non- Indian defendants for a limited set of sexual violence crimes. However, VAWA is not enough to protect Indian women from the astronomical rates of violence they experience. This Comment explores mechanisms used by tribes …

A Watershed Moment In The Education Of American Indians: A Judicial Strategy To Mandate The State Of New Mexico To Meet The Unique Cultural And Linguistic Needs Of American Indians In New Mexico Public Schools, Preston Sanchez, Rebecca Blum-Martinez

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Native American Voting Rights: Two Steps Forward, One Step Back, Patrick Roche

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Cultural Appropriation Of Traditional Garment Designs In The Post-Star Athletica Era, Sahara F. Farzaneh

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Proceedings Of Expert Forum On First Nations Social Assistance Reform, September 3, 2019, Naiomi Metallic, Fred Wien

Articles, Book Chapters, & Popular Press

Social assistance, whether directed to the mainstream population or to First Nations, is not – according to Forum participants -- a sexy topic. Specifically, with respect to First Nation persons living on reserve in Canada, it has been largely a neglected field except for those directly responsible for administering it. Despite its substantive importance, it has not received a lot of attention from the academic research community, for example, nor is it usually near the top of the list of priorities for political leaders and governments.

Why is this the case? Perhaps it has to do with the history of …

Call For Inputs: Climate Change And Human Rights: A Safe Climate, Sara L. Seck, Lisa Benjamin

Articles, Book Chapters, & Popular Press

There is now global agreement that human rights norms apply to the full spectrum of environmental issues, including climate change. The previous Special Rapporteur on human rights and the environment, Mr. John Knox, developed Framework Principles on Human Rights and the Environment that set forth three sets of duties that engage both States and businesses: procedural obligations; substantive obligations; and obligations relating to those in vulnerable situations.

The current Special Rapporteur on human rights and the environment, Mr. David Boyd, is working to provide additional clarity regarding the substantive obligations relating to a range of elements that are essential to …

Ending Piecemeal Recognition Of Indigenous Nationhood And Jurisdiction: Returning To Rcap’S Aboriginal Nation Recognition And Government Act, Naiomi Metallic

Articles, Book Chapters, & Popular Press

Most Indigenous groups in Canada are not self-governing. While the last two decades have seen an increase in laws and policies that provide some Indigenous groups greater control over their territories and citizens, overall these have been ineffective in achieving transformative change. What has transpired in Canada over the last twenty years can be characterized as ‘piecemeal recognition’—discrete recognition of Indigenous control here and there in a case, policy or statute—and implemented in a patchwork fashion. In 1996 the Royal Commission on Aboriginal Peoples report advanced a very reasonable proposal for national legislation recognizing the right of Indigenous peoples to …

Celebrating 30 Years Of The Indigenous Blacks & Mi’Kmaq Initiative: How The Creation Of A Critical Mass Of Black And Aboriginal Lawyers Is Making A Difference In Nova Scotia, Naiomi Metallic

Articles, Book Chapters, & Popular Press

Drawing on my own experience as alumni of the Indigenous Blacks & Mi’kmaq Initiative at the Schulich School of Law at Dalhousie University—one of the only dedicated access program in a Canadian law school for Black and Aboriginal students—I argue that such programs create optimal conditions for fostering greater awareness of critical race issues within the legal profession. The reason for this is that such programs create a critical mass of Black and Aboriginal law students and alumni, who support and encourage each other and, as a result, acquire confidence and skill in raising, and educating others about, critical race …

The Intersection Of Indigenous Public Health With Law And Policy In Canada, Constance Macintosh

Articles, Book Chapters, & Popular Press

This chapter presents an overview of the law, policy and governance practices that are most directly implicated in the population health of Indigenous people who reside in Canada. The first section provides a general description of the socio-legal categories that are drawn upon in health policy, programming and legislation regarding Indigenous peoples. It briefly describes roles in funding and delivering community health services and programming, as well as disputes about responsibilities and some shortcomings.

The second section provides an overview of the population health status of Indigenous peoples. Epidemiological data is presented, and select social determinants of health are also …

Reclaiming The Navajo Range: Resolving The Conflict Between Grazing Rights And Development, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

Grazing is fundamental to Navajo identity, yet management of the Navajo range remains highly problematic. This Essay connects the federal government's devastating livestock reduction effort of the 1930s with the inability of the Navajo Nation to place meaningful limits on grazing and the power of grazing permittees. It argues that the Navajo Nation should consider reasserting the tribe's traditional understanding that property rights depend on use as a way to create space for reservation development.

The Promise And Pitfalls Of C-92: An Act Respecting First Nations, Inuit, And Métis Children, Youth And Families, Naiomi Metallic, Hadley Friedland, Sarah Morales

Reports & Public Policy Documents

On June 21, 2019, Bill C-92 An Act Respecting First Nations, Inuit and Métis Children, Youth and Families became law. The Bill is a huge and unprecedented step forward in Canada. It is the first time the federal government has exercised its jurisdiction to legislate in the area of Indigenous child welfare.

In this article, we identify both the improvements in Bill C-92 since our last report as well as key problems that remain in the five following areas: 1) National Standards 2) Jurisdiction 3) Funding 4) Accountability 5) Data Collection We also suggest strategies to assist Indigenous communities in …

Traditional Ecological Knowledge In Environmental Decisionmaking, Anthony Moffa

Faculty Publications

Traditional ecological knowledge (TEK) is defined as a deep understanding of the environment developed by local communities and indigenous peoples over generations. In the United States, Canada, and around the world, indigenous peoples are increasingly advocating for incorporation of TEK into a range of environmental decisionmaking contexts, including natural resource and wildlife management, pollution standards, environmental and social planning, environmental impact assessment, and adaptation to climate change. On October 31, 2018, ELI hosted an expert panel on TEK, co-sponsored by the National Native American Bar Association and the American Bar Association Section of Environment, Energy, and Resources. The panel discussed …

Front Pages

American Indian Law Review

No abstract provided.