Indigenous, Indian, and Aboriginal Law Commons^™

Traditional Jurisprudence And Protection Of Our Society: A Jurisgenerative Tail, Gregory H. Bigler

American Indian Law Review

No abstract provided.

Trust Lands For The Native Hawaiian Nation: Lessons From Federal Indian Law Precedents, Lane Kaiwi Opulauoho

American Indian Law Review

No abstract provided.

Indigenous Peoples, The International Trend Toward Legal Personhood For Nature, And The United States, Hannah White

American Indian Law Review

No abstract provided.

Foundations Of Sand: Justice Thomas’S Critique Of The Indian Plenary Power Doctrine, Taylor Ledford

American Indian Law Review

No abstract provided.

Agua Caliente Band Of Cahuilla Indians V. Coachella Valley Water District: A Tribe’S Successful Fight For Federally Reserved Water Rights, Alyssa Lankford

American Indian Law Review

No abstract provided.

Extending Tribal Criminal Jurisdiction Outside Of Indian Country: Kelsey V. Pope, Greg S. Keogh

American Indian Law Review

No abstract provided.

“Dramatically Altered The Legal Landscape”? City Of Sherrill V. Oneida Indian Nation In The Lower Courts, Samuel Pokross

American Indian Law Review

No abstract provided.

Indigenous Rights To Water & Environmental Protection, Robert T. Anderson

Articles

This article examines the rights of Indian nations in the United States to adequate water supplies and environmental protection for their land and associated resources. Part I of this article provides a brief background on the history of federal-tribal relations and the source and scope of federal obligations to protect tribal resources. Part II reviews the source and nature of the federal government’s moral and legal obligations to Indian tribes, which are generally referred to as the trust responsibility. Indian reserved water rights and the difficulty tribes experience in protecting habitat needed for healthy treaty resources is discussed in Part …

A Human Right To Self-Government Over First Nation Child And Family Services And Beyond: Implications Of The Caring Society Case, Naiomi Metallic

Articles, Book Chapters, & Popular Press

English Abstract

On January 26, 2016, the Canadian Human Rights Tribunal (the “Tribunal”) released a watershed decision in a complaint spearheaded by the First Nations Child and Family Caring Society of Canada, headed by Dr. Cindy Blackstock, and the Assembly of First Nations (the “Caring Society” decision). The complaint alleged that Canada, through its Department of Indigenous and Northern Affairs (“INAC” or the “Department”), discriminates against First Nations children and families in the provision of child welfare services on reserve. In its decision, the Tribunal found that INAC’s design, management and control of child welfare services on reserve, along with …

A Human Right To Self-Government Over First Nation Child And Family Services And Beyond: Implications Of The Caring Society Case, Naiomi Metallic

Articles, Book Chapters, & Popular Press

On January 26, 2016, the Canadian Human Rights Tribunal (the “Tribunal”) released a watershed decision in a complaint spearheaded by the First Nations Child and Family Caring Society of Canada, headed by Dr. Cindy Blackstock, and the Assembly of First Nations (the “Caring Society” decision). The complaint alleged that Canada, through its Department of Indigenous and Northern Affairs (“INAC” or the “Department”), discriminates against First Nations children and families in the provision of child welfare services on reserve. In its decision, the Tribunal found that INAC’s design, management and control of child welfare services on reserve, along with its funding …

The Broad Implications Of The First Nation Caring Society Decision: Dealing A Death-Blow To The Current System Of Program Delivery On-Reserve & Clearing The Path To Self-Government, Naiomi Metallic

Articles, Book Chapters, & Popular Press

On January 26, 2016, the Canadian Human Rights Tribunal (the “Tribunal”) released a watershed decision in a complaint spearheaded by the First Nations Child and Family Caring Society of Canada, its Executive Director, Dr. Cindy Blackstock, and the Assembly of First Nations (the “Caring Society” decision). The complaint alleged that Canada, through its Department of Indigenous and Northern Affairs (“INAC” or the “Department”), discriminates against First Nations children and families in the provision of child welfare services on reserve. In its decision, the Tribunal found that INAC’s design, management and control of child welfare services on reserve, along with its …

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

Faculty Scholarship

This article is about the CDIB and its role in defining Native American legal identity. The purpose of the article is to describe the CDIB, its function, its statutory authority (or lack thereof), and the BIA’s recent attempts at issuing regulations, which no other article or book has done. First, I discuss its primary purpose as proof of blood quantum for specific federal statutes and regulations, and how its use has expanded to other purposes, including by tribes to define eligibility for membership. Second, I discuss its origins as an internal BIA document lacking any direct congressional authorization or published …

Standing Rock, The Sioux Treaties, And The Limits Of The Supremacy Clause, Carla F. Fredericks, Jesse D. Heibel

Publications

The controversy surrounding the Dakota Access Pipeline (“DAPL”) has put the peaceful plains of North Dakota in the national and international spotlight, drawing thousands of people to the confluence of the Missouri and Cannonball Rivers outside of Standing Rock Sioux Reservation for prayer and peaceful protest in defense of the Sioux Tribes’ treaties, lands, cultural property, and waters. Spanning over 7 months, including the harsh North Dakota winter, the gathering was visited by indigenous leaders and communities from around the world and represents arguably the largest gathering of indigenous peoples in the United States in more than 100 years.

At …

"At Bears Ears We Can Hear The Voices Of Our Ancestors In Every Canyon And On Every Mesa Top": The Creation Of The First Native National Monument, Charles Wilkinson

Publications

No abstract provided.

Public Lands, Conservation, And The Possibility Of Justice, Sarah Krakoff

Publications

On December 28, 2016, President Obama issued a proclamation designating the Bears Ears National Monument pursuant to his authority under the Antiquities Act of 1906, which allows the President to create monuments on federal public lands. Bears Ears, which is located in the heart of Utah’s dramatic red rock country, contains a surfeit of ancient Puebloan cliff-dwellings, petroglyphs, pictographs, and archeological artifacts. The area is also famous for its paleontological finds and its desert biodiversity. Like other national monuments, Bears Ears therefore readily meets the statutory objective of preserving “historic and prehistoric structures, and other objects of historic or scientific …

To Sue And Be Sued: Capacity And Immunity Of American Indian Nations, Richard B. Collins

Publications

Can American Indian nations sue and be sued in federal and state courts? Specific issues are whether tribes have corporate capacity to sue, whether a Native group has recognized status as a tribe, and whether and to what extent tribes and their officers have governmental immunity from suit. Tribal capacity to sue is now well established, and federal law has well-defined procedures and rules for tribal recognition. But tribal sovereign immunity is actively disputed.

This Article reviews retained tribal sovereignty in general and summarizes past contests over tribal capacity to sue and their resolution into today’s settled rule. Next is …

Beyond A Zero-Sum Federal Trust Responsibility: Lessons From Federal Indian Energy Policy, Monte Mills

American Indian Law Journal

The federal government’s trust relationship with federally- recognized Indian tribes is a product of the last two centuries of Federal Indian Law and federal-tribal relations. For approximately the last 50 years, the federal government has sought to promote tribal self-determination as a means to carry out its trust responsibilities to Indian tribes; but the shadows of prior federal policies, based largely on notions of tribal incompetence and federal paternalism, remain. Perhaps no other policy arena better demonstrates the history, evolution, and promise for reform of the federal trust relationship than Federal Indian energy policy, or the range of federal statutes …

Indian Sovereignty, General Federal Laws, And The Canons Of Construction: An Overview And Update, Bryan H. Wildenthal

American Indian Law Journal

No abstract provided.

By Any Means: How One Federal Agency Is Turning Tribal Sovereignty On Its Head, Clifton Cottrell

American Indian Law Journal

No abstract provided.

The Sioux's Suits: Global Law And The Dakota Access Pipeline, Stephen Young

American Indian Law Journal

The Sioux Tribe’s lawsuits and protests against the Dakota Access Pipelines (DAPL) received an incredible amount of international attention in ways that many Indigenous peoples’ protests have not. This article argues that attention exists because the Sioux Tribe has been at the epicenter of the Indigenous peoples’ rights movement in international law. Accordingly, they have invoked or claimed international human rights—particularly free, prior, and informed consent (FPIC)— to complicate, and perhaps destabilize, the DAPL’s development. However, the importance of their activism is not merely in claiming human rights.

Based upon a global map of law that involves multiple and overlapping …

A Hell Of A Complex: The Miscarriages Of The Federal Hydropower Licensing Regime, Derek Red Arrow Frank

American Indian Law Journal

What you are about to read is an illustration of systemic racism. Systemic racism is the current effects of statutes and policies developed through a singular and racially-charged narrative. The current hydropower relicensing regime fails to acknowledge the overarching Treaty-reserved rights of American Indian tribes while statutorily granting state and federal authorities the power to prescribe mandatory conditions on hydropower projects. This fact remains constant whether the hydropower project is within or outside a tribe’s reservation or aboriginal territory. Specifically, the Hells Canyon Complex, which rests along the Snake River, has had and continues to have enormous impacts on fisheries …

Solution Before Pollution: Mining And International Transboundary Rivers In Southeast Alaska, Britany Kee’ Ya Aa. Lindley

American Indian Law Journal

No abstract provided.

Conservation Easements: A Flexible New Tool For Washington Tribes, A Case Study Of The Lower Elwha Klallam Tribe, David P. Papiez

American Indian Law Journal

No abstract provided.

Enhancing Federal-Tribal Coordination Of Invasive Species, Blaine Parker, Chuck Bargeron, Sean Southey, Lori Buchanan, Miles Falck, Chris Fisher, Joe Maroney, Mervin Wright, Gintas Zavadkas

National Invasive Species Council

Invasive species are defined by the United States government to mean “with regard to a particular ecosystem, a non-native organism whose introduction causes or is likely to cause economic or environmental harm, or harm to human, animal, or plant health” (Executive Order [EO] 13751). The ecosystems to which invasive species are introduced or spread are not delimited by jurisdictional boundaries; they intersect with lands managed by federal, tribal, state, territorial, and county governments, as well as properties under private ownership. For this reason, effective coordination and cooperation across jurisdictions is of paramount importance in the prevention, eradication, and control of …

United States V. Osage Wind, Llc, Summer Carmack

Public Land & Resources Law Review

The Osage Nation, as owner of the beneficial interest in its mineral estate, issues federally-approved leases to persons and entities who wish to conduct mineral development on its lands. After an energy-development company, Osage Wind, leased privately-owned surface lands within Tribal reservation boundaries and began to excavate minerals for purposes of constructing a wind farm, the United States brought suit on the Tribe’s behalf. In the ensuing litigation, the Osage Nation insisted that Osage Wind should have obtained a mineral lease from the Tribe before beginning its work. In its decision, the Tenth Circuit applied one of the Indian law …

Constitutional Conflict And The Development Of Canadian Aboriginal Law, Guy Charlton, Xiang Gao

The University of Notre Dame Australia Law Review

This paper argues that aboriginal rights in Canada have been greatly affected by 19 th century governmental and social conflicts within the Canadian colonial state. These conflicts, largely over the ownership of land and regulatory authority between the federal government and the provinces necessarily impacted the First Nations on the ground while affecting how their legal claims were recognized and implemented. In particular they impacted the legal efficacy of treaty rights, the scope of rights recognised by the courts and an expansive legally protected notion of indigenous sovereignty. As a result, the rights now protected under sec. 25 and 35 …

Community Engagement And Social Activism In Legal, Aliza Organick

Faculty Scholarship

Organick encourages new law faculty to reach out to the clinicians on your faculty for support, potential collaborative projects. This benefits students, and lays the foundation for meaningful friendships.

Courts Also Won (Albuquerque) Mayoral Election, Kevin Washburn

Faculty Scholarship

In the 2017 Albuquerque mayoral election, one of the candidates sought to make the election a referendum on the New Mexico judiciary and was soundly defeated. In this respect, in addition to candidate and now Mayor-elect Time Keller, the courts also won the election.

Indigenous Rights In The Trump Era, Tereza M. Szeghi

Biennial Conference: The Social Practice of Human Rights

This paper examines the ways in which the Dakota Access Pipeline and the related protests were divergently covered in mainstream versus alternative news sources and what this divergent coverage suggests about the current status of American Indian affairs and the role of American Indians in the U.S. cultural imaginary. Moreover, the paper will address the status of American Indian tribal sovereignty in the Trump era more broadly, with particular focus on American Indians' treaty-related rights to self-determination in the use of their lands.

An Avoidable Conundrum: How American Indian Legislation Unnecessarily Forces Tribal Governments To Choose Between Cultural Preservation And Women's Vindication, Catherine M. Redlingshafer

Notre Dame Law Review

This Note makes two arguments concerning the state of American Indian legislation, and then proposes an alternative. First, this Note argues that the recently enacted legislation regarding criminal justice in American Indian societies will work to encourage cultural assimilation and result in the loss of tribal traditions and autonomy. In effect, the legislation is putting tribes in an impossible position: it is unfairly coercing them to choose between (1) the preservation of their own culture and customs, and (2) the ability to prosecute those victimizing their members. Second, this Note argues that even if a tribe decides to risk its …