Indigenous, Indian, and Aboriginal Law Commons^™

Taxation And Doing Business In Indian Country, Erik M. Jensen

Maine Law Review

Economic development on the lands of the American Indian nations has been spotty at best. Almost everyone knows the great success stories with Indian gaming, which has been furthered by federal legislation, but those economic benefits have not been felt uniformly. Some tribes have prospered because of this peculiarly favored form of enterprise; others have not and, in many cases, probably cannot. Substantial economic development in Indian country will not occur without significant infusions of outside capital, but investment by non-Indian and nongovernmental sources is risky, or is perceived to be so, which leads to the same practical result. This …

The Wastelander Life: Living Before And After The Release Of Daniels V Canada, Signa A. Daum Shanks

Osgoode Hall Law Journal

The difficulties of entering the Canadian legal system for Indigenous peoples often includes the challenge of using the tools that have a history of harming those same peoples in the first place. Such a reality means the pursuit of recognition in Canadian law will not always be a positive experience—even when a decision supposedly represents a ‘win.’ Here, the author considers some of the effects that have developed from the release of Daniels v Canada. As with other Supreme Court of Canada releases, it inspires observations about colonialism, the modern plight of Indigenous peoples, and the rule of law.

United States V. Gila Valley Irrigation District, Ryan L. Hickey

Public Land & Resources Law Review

Attempts to alter water use agreements, especially those spanning back decades or even centuries, elicit intense scrutiny from water rights holders. In United States v. Gila Valley Irrigation Dist., the Ninth Circuit upheld application of a 1935 Decree apportioning water among various regional entities, including two Indian tribes, to bar a mineral company from transferring water rights between properties within the Gila River drainage.

The Inherent Right Of Indigenous Governance, Kent Mcneil

All Papers

I would like to start by acknowledging and thanking the Algonquin Nation, on whose unceded territory we are meeting.

When the Dominion of Canada was created in 1867 by the UK Parliament, the BNA Act gave the Parliament of Canada exclusive jurisdiction over “Indians, and Lands reserved for the Indians”. Parliament used this authority to enact the Indian Act in 1876. That statute gave the Canadian government the power to impose the band council system on First Nations without their consent.

The governance authority of First Nation band councils is therefore delegated authority – it comes from the Indian Act …

Getches-Wilkinson Center Newsletter, Fall 2017, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Getches-Wilkinson Center for Natural Resources, Energy, and the Environment Newsletter (2013-)

No abstract provided.

The Supreme Court's Last 30 Years Of Federal Indian Law: Looking For Equilibrium Or Supremacy?, Alexander Tallchief Skibine

Utah Law Faculty Scholarship

Since 1831, Indian nations have been viewed as Domestic Dependent Nations located within the geographical boundaries of the United States. Although Chief Justice John Marshall acknowledged that Indian nations had a certain amount of sovereignty, the exact extent of such sovereignty as well as the place of tribes within the federal system has remained ill-defined. This Article examines what has been the role of the Supreme Court in integrating Indian nations as the third Sovereign within our federalist system. The Article accomplishes this task by examining the Court’s Indian law record in the last 30 years. The comprehensive survey of …

Agua Caliente Band Of Cahuilla Indians V. Coachella Valley Water Dist., Rebecca Newsom

Public Land & Resources Law Review

In Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., the Ninth Circuit upheld the Tribe’s federal reserved right to the groundwater underlying its reservation. This decision enforces that the courts will not defer to state water law when there is an established federal reserved water right. Further, the Ninth Circuit expressly extended this right to groundwater.

Lewis V. Clarke, Summer L. Carmack

Public Land & Resources Law Review

One manner in which Indian tribes exercise their inherent sovereignty is by asserting sovereign immunity. In Lewis v. Clarke, the Court decided that the sovereign immunity extended to instrumentalities of tribes did not further extend to tribal employees acting within the scope of their employment. The Court acknowledged the concerns of the lower court, namely, the possibility of setting a precedent allowing future plaintiffs to sidestep a tribe’s sovereign immunity by suing a tribal employee in his individual capacity. However, the Supreme Court ultimately felt that the immunity of tribal employees should not exceed the immunity extended to state …

Parchment As Power: The Effects Of Pre-Revolutionary Treaties On Native Americans From The Colonial Period To Present, Katie Wilkinson

The Purdue Historian

In colonial America, there was one resource that settlers were thirsty for and only Native Americans could provide: land. Europeans were interested in gaining possession of Native land via whatever methods would place the fertile soil into their greedy palms the fastest. As a result, they turned to a familiar practice to establish ownership – the written word, more specifically treaties. Unfortunately, the Europeans had fundamentally different thoughts concerning land than the Natives and it resulted in great forfeitures for tribes. While Native Americans were often tricked into land cessions, this was not always the case. Some of the reasons …

Why Indian Country? An Introduction To The Indian Law Landscape (Chapter One In Indian Law And Natural Resources: The Basics And Beyond), Monte T. Mills

Faculty Books & Book Chapters

No abstract provided.

Indigenous Sovereignty And The Legality Of Crown Sovereignty: An Unresolved Constitutional Conundrum, Kent Mcneil

All Papers

Let me start by acknowledging and thanking the Enoch Cree Nation, on whose territory we are meeting.

So here we are, 150 years after Confederation, and yet the legal basis for Crown sovereignty over Canada remains uncertain.

The standard explanation is that the Crown acquired sovereignty over French Canada by cession of Acadia (French possessions in what became the Maritime Provinces) by the Treaty of Utrecht in 1713, and by conquest of New France in 1759-60 and cession by the Treaty of Paris in 1763. However, this leaves unexplained how France got sovereignty over territories that were occupied and controlled …

Petition For Writ Of Certiorari - 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.

The Governance Of Indigenous Health, Constance Macintosh

Articles, Book Chapters, & Popular Press

This chapter explores these dynamics of Indigenous health governance in Canada. It opens by describing how Indigenous peoples have successfully used constitutional arguments to assert their own vision of well-being, within the broader context of colonial oppression and attempts to erase Indigenous knowledge and culture. The chapter then tracks federal initiatives on Indigenous health, in their design and outcomes, and how they evolved into the contemporary state governance regime. The next part turns to provincial and self-government initiatives that have expanded, but also complicated, Indigenous health governance in Canada. The chapter closes by considering different ways in which provinces, territories …

Bystander No More? Improving The Federal Response To Sexual Violence In Indian Country, Sarah Deer

Utah Law Review

For better or worse, the federal government has taken responsibility for providing for the protection of Native people. So long as the federal government refuses to allow tribes to govern themselves completely and independently, it is imperative that the federal government enact policies empowering Native survivors of sexual assault. The federal government must do more to protect tribal members from sexual predators, to safeguard reservations not only from career criminals but also to ensure that federal agencies like the Bureau of Indian Affairs and the Indian Health Services do not hire men with a history of violence against women or …

Buried History: Reclaiming Native Diplomats In Congressional Cemetery, Rachael Cassidy

History ETDs

ABSTRACT: The Congressional Cemetery in Washington D.C., the first national cemetery in United States, holds the remains of thirty six Native Diplomats who died in capital city while negotiating treaties for their nations. The diplomats faced discrimination in Washington D.C. because they were perceived as racially inferior. Myths, such as Manifest Destiny and the vanishing Indian, justified the displacement of Indigenous people from their homelands and attempted to erase them as America’s first people. Although Native diplomats faced intense racial stereotypes and intentional deception during treaty negotiations, they skillfully negotiated to protect their nations and their sovereignty. The stories of …

Indigenous Autonomy In Colombia: State-Building Processes And Multiculturalism, Pablo Rueda-Saiz

Articles

This article shows a novel facet in the complex relation between multiculturalism, the state and the market. Contrary to conventional theories in political science, sociology and anthropology, it shows that it is not just the success, but also the failure of the state and the market to commoditise nature and turn it into property that can actually help to foster ethnic identity. While state-driven market incentives to expand the agricultural frontier in Colombia during the 1960s and 1970s failed, they did help to foster differentiated indigenous identities and organisations, which converged around the revival of long-forgotten nineteenth century indigenous laws …

Justice Scalia And Tonto Fistfight In Heaven, Ray Martin

American Indian Law Journal

No abstract provided.

The Master's Tools: Tribal Sovereignty And Tribal Self-Governance Contracting/Compacting, Danielle Delaney

American Indian Law Journal

No abstract provided.

Improving Native American Tribes’ Voice In International Climate Change Negotiations, Jin Hyung Lee

American Indian Law Journal

No abstract provided.

No Connection: The Issue Of Internet On The Reservation, Emily S. Donnellan

American Indian Law Journal

No abstract provided.

Case Law On American Indians: August 2015—August 2016, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Swinomish Indian Tribal Community V. Bnsf Railway Co. And Its Effect On Litigation Challenging Bia’S New Rights-Of-Way Regulations, Kaelen Brodie

American Indian Law Journal

No abstract provided.

Icra Habeas Corpus Relief: A New Habeas Jurisprudence For The Post-Oliphant World?, Hunter Cox

American Indian Law Journal

No abstract provided.

Imaginary Lines, Real Consequences: The Effect Of The Militarization Of The United States-Mexico Border On Indigenous Peoples, Joseph Kowalski

American Indian Law Journal

No abstract provided.

Tribal Sovereignty And Tobacco Control In State-Tribe Cigarette Compacts, Arielle Sloan

BYU Law Review

Compacts are powerful legal tools that states and tribes can use to negotiate agreements. One of the most interesting examples of state-tribe compacts is the cigarette compact, which is useful in combating the illicit cigarette trade. This Note argues that tribal leaders and states can more effectively reach this goal by (1) recognizing tribal sovereignty in and (2) keeping tobacco control at the heart of compact discussions.

Making It Work: Tribal Innovation, State Reaction, And The Future Of Tribes As Regulatory Laboratories, Katherine Florey

Washington Law Review

This Article examines a growing phenomenon: even as the Supreme Court has steadily contracted the scope of tribes’ regulatory authority, many tribes have in recent years passed innovative laws and ordinances, often extending well beyond any comparable initiatives at the state or local level. Recently, for example, the Navajo Nation passed a comprehensive taxation scheme designed to discourage the consumption of unhealthy food items and to subsidize the purchase of healthy ones—a scheme far more ambitious than the soda tax efforts that have stalled in many cities and states. Likewise, amid national controversy over marijuana legalization, the Flandreau Santee Sioux …

Tribal Jurisdiction—A Historical Bargain, Matthew L.M. Fletcher, Leah Jurss

Maryland Law Review

No abstract provided.

Untangling The Court’S Sovereignty Doctrine To Allow For Greater Respect Of Tribal Authority In Addressing Domestic Violence, Lauren Oppenheimer

Maryland Law Review

No abstract provided.

Traditional Ecological Disclosure: How The Freedom Of Information Act Frustrates Tribal Natural Resource Consultation With Federal Agencies, Sophia E. Amberson

Washington Law Review

When a federal or state agency administers environmental laws, such as the Endangered Species Act, the agency often consults with tribes. During these consultations, tribes often disseminate traditional ecological knowledge (TEK)—knowledge acquired by a tribe that is a mix of environmental ethics and scientific knowledge about tribal use. However, these consultations may be susceptible to disclosure under the Freedom of Information Act (FOIA). The purpose of FOIA is to inform the public. Because TEK often contains sensitive information about tribal social, cultural, psychological, and economic factors, tribes do not want this information available to those who are not members of …

Land Regime Choice In Close-Knit Communities: The Case Of The First Nations Land Management Act, Malcolm Lavoie, Moira Lavoie

Osgoode Hall Law Journal

Land interests on Canadian First Nations reserves have long been governed by the rigid and paternalistic provisions of the federal Indian Act, which require the permission of the federal Minister of Indigenous Affairs for even relatively minor land transactions. Yet an increasing number of First Nations have taken advantage of the 1999 First Nations Land Management Act (FNLMA), which allows First Nations to adopt a custom land code that replaces most of the reserve land provisions of the Indian Act in their community. This paper seeks to examine how First Nation communities have chosen to exercise their powers under this …