Indigenous, Indian, and Aboriginal Law Commons^™

The Bald Eagle, The Florida Panther And The Nation's Word: An Essay On The "Quiet" Abrogation Of Indian Treaties And The Proper Reading Of United States V. Dion, Robert Laurence

Florida State University Journal of Land Use and Environmental Law

No abstract provided.

Indian Fishing Rights: A Lost Opportunity For Ecosystem Management, Martin H. Belsky

Florida State University Journal of Land Use and Environmental Law

This Article targets the problem of depletion of salmon and steelhead fisheries in the Northwest United States. The Article provides a brief overview of the Sohappy v. Smith and United States v. Washington decisions, which promoted regulation and conservation of these fisheries. Next, the Article discusses the Ecosystem Management Model, which these courts declined to adopt. Additionally, a description of the legislative measures taken in response to these two cases is provided. The Article concludes that adoption of an ecosystem management approach to fisheries management is essential to the future well-being of the fisheries in the Northwest United States.

Commercial Hazardous Waste Projects In Indian Country: An Opportunity For Tribal Economic Development Through Land Use Planning, Robert Sitkowski

Florida State University Journal of Land Use and Environmental Law

No abstract provided.

Motion For Leave To File Amicus Curiae Brief And Brief Of United Catcher Boats As Amicus Curiae In Support Of Petitioner - Makah Indian Tribe V. Quileute Indian Tribe And Quinault Indian Nation, Docket No. 17-1592 (139 S.Ct. 106 (2018))

Makah Indian Tribe v. Quileute Indian Tribe and Quinault Indian Nation, Docket No. 17-1592 (139 S.Ct. 106 (2018))

No abstract provided.

Brief Of Respondent State Of Washington Department Of Fish And Wildlife In Support Of Petition For Writ Of Certiorari - Makah Indian Tribe V. Quileute Indian Tribe And Quinault Indian Nation, Docket No. 17-1592 (139 S.Ct. 106 (2018))

Makah Indian Tribe v. Quileute Indian Tribe and Quinault Indian Nation, Docket No. 17-1592 (139 S.Ct. 106 (2018))

No abstract provided.

A View From American Courts: The Year In Indian Law 2017, Grant Christensen

Seattle University Law Review

This Article provides a comprehensive review of Indian law for 2017. It does not include a citation to every case related to Indian law issued by the courts but tries to incorporate the majority of opinions into its catalog to provide a robust discussion of the changes in Indian law over the course of 2017. Part I of this Article provides some general statistics about Indian law in 2017. Part II focuses on activity at the U.S. Supreme Court, which is the most watched forum for Indian law cases for obvious reasons. Part III groups cases by subject area and …

Indian Nations And The Constitution, Joseph William Singer

Maine Law Review

This Constitution Day speech focuses on how the Constitution has been interpreted both to protect and to undermine the sovereignty of Indian nations. The good news is that both the text of the Constitution and the practice of the United States have recognized Indian nations as sovereigns who pre-existed the creation of the United States and who retain their inherent original sovereignty. The bad news is that the Constitution has often been interpreted by the Supreme Court to deny Indian nations protection for their property rights and their sovereignty. Most Americans are not aware of the history of interactions between …

The State, The Tribe, And The Ugly: The Ninth Circuit Stakes A Bad Claim On Indian Land For Tribal Civil Jurisdiction Over Nonmembers In Window Rock Unified School District V. Reeves, Tyler L. Murphy

Villanova Law Review (1956 - )

No abstract provided.

Federal Indian Law, Verónica C. Gonzales

Faculty Scholarship

Introduction to Federal Indian Law, broken down by years: 1492, 1787, 1828, 1887, 1934, 1953, 1968 to the present. Includes major cases and additional resources.

I See You - A Story From The Haudenosaunee, Simone Anter J.D.

American Indian Law Journal

A young Apache woman sits on a bench outside of her university classroom; next to her is a stack of law books. She has just come from the first day of her first-year property class, where the professor lectured about the origins of property law devoid of any mention of Native people. As she sits she notices an individual walking along the sidewalk, towards her. This person wears a baseball hat with the Washington Redskins’ logo embellished on the front, a grotesque caricature of an “Indian.” The person’s attire includes a T-shirt featuring a skull wearing a feathered headdress, probably …

Tribal Exclusion Authority: Its Sovereign Basis With Recommendations For Federal Support, Jeremy Wood

American Indian Law Journal

No abstract provided.

Indian Child Welfare Act Annual Case Law Update And Commentary, Kathryn Fort, Adrian T. Smith

American Indian Law Journal

There are, on average, 200 appellate cases addressing the Indian Child Welfare Act (ICWA) annually—though this number includes published and unpublished opinions. There are usually around thirty reported state appellate court cases involving ICWA issues every year. There has never been a systematic look at the cases on appeal including an analysis of who is appealing, what the primary issues are on appeal, and what trends are present. This article seeks to fill that void.

This article provides a comprehensive catalog of published ICWA jurisprudence from across all fifty states in 2017. Designed as a quick reference for the ICWA …

August 2016 - August 2017 Case Law On American Indians, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Cdib: The Role Of The Certificate Of Degree Of Indian Blood In Defining Native American Legal Identity, Paul Spruhan

American Indian Law Journal

No abstract provided.

Native American Rights & Adoption By Non-Indian Families: The Manipulation And Distortion Of Public Opinion To Overthrow Icwa, Harman Bual

American Indian Law Journal

No abstract provided.

The Negative Effects Of Confusion Over Collateral Agreements Under The Indian Gaming Regulatory Act: Which Agreements Need Review?, Matthew D. Craig

UNLV Gaming Law Journal

No abstract provided.

Congressional Power And Sovereignty In Indian Affairs, Michalyn Steele

Utah Law Review

The doctrine of inherent tribal sovereignty—that tribes retain aboriginal sovereign governing power over people and territory—is under perpetual assault. Despite two centuries of precedential foundation, the doctrine must be defended afresh with each attack. Opponents of the doctrine of tribal sovereignty express skepticism of the doctrine, suggesting that tribal sovereignty is a nullity because it is not unfettered. Some pay lip service to the doctrine while undermining tribes in their exercise of inherent sovereignty. Underlying many of these legal fights is confusion about both the nature of tribal sovereignty and the justifications for its continuing existence. Under current federal law, …

Navajo Nation V. Department Of The Interior, Jaclyn R. Van Natta

Public Land & Resources Law Review

In Navajo Nation v. Department of the Interior, the Navajo Nation challenged the Department of the Interior’s 2001 and 2008 water allocation guidelines and asserted that under NEPA and the APA the guidelines violated the Navajo Nation’s water rights. The Navajo Nation also asserted a breach of trust claim against the United States. After nearly a decade of attempted settlement negotiations, the Navajo Nation reasserted its complaints. The District Court for the District of Arizona denied the Navajo Nation’s motions, and the Navajo Nation appealed to the Ninth Circuit Court of Appeals, which determined the Navajo Nation lacked standing, …

The Heart Of K'É: Transforming Diné Special Education And Unsettling The Colonial Logics Of Disability, Sandra Yellowhorse

American Studies ETDs

This paper takes up the roles of ideology and spatiality as they impact Diné students and learners in understanding conceptions of normativity, neuro-diversity and bodily variance. I am concerned with how the movement and creation of Indigenous schools and their praxis still maintain and often times produce settler colonial ideologies of being, personhood, difference and ability. I illustrate the challenges that Diné planners and educators face in entrenching cultural knowledge and language into their educational initiatives, while some of the problematic manifestations and expressions of normativity present themselves through state polices, federal law and mainstream curriculum.

I focus on the …

Issue 1: Reimagining Overrepresentation Research: Critical Reflections On Researching The Overrepresentation Of First Nations Children In The Child Welfare System, Vandna Sinha, Ashleigh Delaye, Brittany Orav-Lakaski

Journal of Law and Social Policy

This paper builds on the experiences of the first author in doing research on the overrepresentation of First Nations children in child welfare systems in Canada. Six lessons are presented: (1) overrepresentation is an inherently quantitative construct; (2) overrepresentation is an inherently comparative construct; (3) a focus on overrepresentation draws attention to the needs of specific groups, but may obscure the need for broader systemic reform; (4) available data relies on, but incompletely represents, decision-maker perspectives; (5) available data emphasizes point-in-time decisions; and (6) ambiguity in data must be very clearly acknowledged. Building on discussion of these lessons, we explore …

Reply Brief For The Petitioner - Washington V. United States, Docket No. 17-269 (138 S.Ct. 735 (2018))

Washington v. United States, Docket No. 17-269 (138 S.Ct. 735 (2018))

No abstract provided.

Brief Amicus Curiae On Behalf Of Pacific Coast Federation Of Fishermen’S Associations, Alaska Trollers Association, Institute For Fisheries Resources, Fly Fishers International, Northwest Sportfishing Industry Association, Northwest Guides And Anglers Association - Washington V. United States, Docket No. 17-269 (138 S.Ct. 735 (2018)) Association Of Northwest Steelheaders, And The Conservation Angler In Support Of Respondents

Washington v. United States, Docket No. 17-269 (138 S.Ct. 735 (2018))

No abstract provided.

Native American Tribal Appellate Courts: Underestimated And Overlooked, Gregory D. Smith

The Journal of Appellate Practice and Process

No abstract provided.

Brief For Southwest Indian Law Clinic As Amici Curiae, United States V. Smith, Verónica C. Gonzales, Barbara L. Creel

Faculty Scholarship

Prior cases, have assumed, without analysis that the ACA applies to Indian Country. This review of the ACA failed to consider and incorporate clearly established Indian law principles and foundational tenets of criminal law in the analysis of its applicability to Indians and Indian Country. Most importantly, the precedent and the Court below failed to understand the racial component involved in the analysis. These failures to understand the principles of Indian law and criminal law, have rendered haphazard and incoherent decisions.

Amici seek to bring clarity to the complex jurisdictional interplay and provide a practical framework for the proper analysis …

Discussion Paper: Challenges And Successes Of Select Federal Initiatives In First Nation Reserve Communities, Including The Canada Labour Code, The Canadian Human Rights Act, And The National Building Code, Constance Macintosh

Reports & Public Policy Documents

This paper is to inform on-going discussions over proposed new federal accessibility legislation, and in particular discussions about whether such legislation should be extended to First Nation reserve communities. This paper is not a part of the consultation process that is being undertaken with various First Nations organizations. It surveys statutory law, reports, literature and jurisprudence. It discusses the legal landscape that must inform any dialogue about extending the federal regime to First Nation communities and assesses successes and challenges associated with three existing federal regimes that apply on First Nation Reserves.

Gmos, International Law And Indigenous Peoples, Casandia Bellevue

Pace International Law Review

This Article sprung from a desire to discover why—despite scientific uncertainty and the oft-cited precautionary principle in international law—genetically modified organisms are still allowed to spread via international trade and natural ecological cycles. While exploring this topic, it did not take long to come across the environmental justice impacts of genetically modified crops, and their particularly disparate impact upon indigenous peoples across the globe. Not only are GMOs threatening biodiversity and our planet, but also the very existence and cultural foundations of many indigenous groups.

This Article seeks to answer the following questions: What are the international agreements that can …

A Dollar For Your Thoughts: Dollar General And The Supreme Court's Struggle With Tribal Civil Jurisdiction, Hallie Mcdonald

Hofstra Law Review

No abstract provided.

Views From A Tribal Court: How The Indian Civil Rights Act Led To Civil Rights Violations, Anne Bruno

Tribal Law Journal

This article examines the implications of the Indian Civil Rights Act (ICRA), and its impact on one tribe in New Mexico. The article first discusses the development of the ICRA and its subsequent effect on individual rights and tribal nation’s responsibilities when handling criminal offenses in tribal courts. Second, the article provides some historical context and background of pueblo Indian communities in New Mexico as a prelude to providing observations that were made of one specific Pueblo’s Contemporary Tribal Court. Third, the article provides a detailed glimpse into the procedures that were followed during six criminal arraignments: focusing on the …

Battling For Human Rights In Indian Country (Speech At The 50 Years Of The Indian Civil Rights Act Symposium), David E. Wilkins, Lumbee Nation

Tribal Law Journal

The speech discusses the Indian Civil Rights Act (ICRA) and its implications on citizenship, specifically disenrollment. Prof. Wilkins discusses his view of “‘dismemberment’ as the act of cutting off a part of the tribal body—doing harm to both the politically discarded individual and the Nation itself—taking place behind the cloak of native sovereignty.”

The speech first provides a brief history of banishment within tribal communities followed by a discussion of federal Indian law and its impact on tribal banishment through a review of important federal Supreme Court cases as well as significant tribal court cases.

Second, the speech provides a …

Indigenous Water Justice, Barbara Cosens

Articles

Indigenous Peoples are struggling for water justice across the globe. These struggles stem from centuries-long, ongoing colonial legacies and hold profound significance for Indigenous Peoples’ socioeconomic development, cultural identity, and political autonomy and external relations within nation-states. Ultimately, Indigenous Peoples’ right to self- determination is implicated. Growing out of a symposium hosted by the University of Colorado Law School and the Native American Rights Fund in June 2016, this Article expounds the concept of “indigenous water justice” and advocates for its realization in three major trans- boundary river basins: the Colorado (U.S./Mexico), Columbia (Canada/U.S.), and Murray-Darling (Australia). The Article begins …