Indigenous, Indian, and Aboriginal Law Commons^™

As Long As The Water Shall Flow: Bringing Water To Tribal Homelands, Jeanette Wolfley

Faculty Scholarship

Only the first page is uploaded. Please contact the UNM Law Library on accessing the full text.

Protecting Sacred Ground: The San Manuel Ruling And Implications For Indian Cultural Resource Preservation, Gray O'Dwyer

University of the District of Columbia Law Review

Six hundred years ago, all land in America was Indian land.1 Then,"[Europe] conducted some of her adventurous sons into this western world.., and discovery gave title... [which] could be consummated by possession."2 This "doctrine of discovery," agreed upon between colonial powers, essentially granted title to anyone who could occupy American soil. Europeans quickly scrambled to negotiate peace treaties with native tribes so that they could install settlers and thereby claim territory. The inherent problems with these treaties were numerous; beyond conflicting interests,3 outright fraud,4 and language barriers, the terms of transfer were inherently invalid because the government that was taking …

Schaghticoke Tribal Nation V. Kent School Corporation Inc., Lindsey M. West

Public Land & Resources Law Review

The United States Court of Appeals for the Second Circuit affirmed dismissal of three consolidated actions of the Schaghticoke Tribal Nation claiming the Schaghticoke had been dispossessed of Indian land without the approval of Congress, a violation of the Nonintercourse Act. The court found the district court correctly deferred under the primary jurisdiction doctrine to the United States Department of Interior’s determination that the Schaghticoke did not qualify for tribal status. Additionally, the district court properly relied on the Department of Interior’s factual findings in holding the Schaghticoke presented insufficient evidence to establish a prima facie violation of the Nonintercourse …

Jackson V. Payday Financial, Llc., Hannah S. Cail

Public Land & Resources Law Review

In Jackson v. Payday Financial, the Seventh Circuit Court of Appeals held loan a provision requiring arbitration in tribal court was unreasonable and substantially and procedurally unconscionable. The Court rejected Payday’s argument that the dispute belonged in tribal court, because there was no subject matter jurisdiction over Plaintiffs’ claims, and the defendants did not raise a colorable claim for tribal jurisdiction or tribal exhaustion.

Indian Education: Maintaining Tribal Sovereignty Through Native American Culture And Language Preservation, Nizhone Meza

Brigham Young University Education and Law Journal

No abstract provided.

Tribal Courts Part Ii: Crow, Ft. Belknap, Fort Peck And Northern Cheyenne, Cynthia Ford

Faculty Journal Articles & Other Writings

No abstract provided.

Smith V. Parker, Lindsay M. Thane

Public Land & Resources Law Review

The Eighth Circuit Court of Appeals found that an 1882 Act of Congress did not intend to diminish the boundaries of the Omaha Indian Reservation in Nebraska. The district court’s decision was affirmed because reservation land may not be divested from the tribe absent clear congressional intent to alter the reservation’s boundaries. Because the Omaha Reservation land was not diminished, the town of Pender, Nebraska—which currently sits on Reservation land—and residents of Pender, Nebraska who are engaged in the sale of alcoholic beverages must comply with the Omaha Tribal Code’s imposition of a ten percent sales tax on these beverages.

Agenda: Seeds Of Change: Responding To Global Change In A Bottom-Up World, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, University Of Colorado Boulder. School Of Law, Posner Center For International Development, Resolve (Firm), Newmont Mining Corporation

Seeds of Change: Responding to Global Change in a Bottom-Up World (Martz Winter Symposium, February 12-13)

Sponsors: Posner Center for International Development, RESOLVE, Inc., Newmont Mining Corporation, and Getches-Wilkinson Center for Natural Resources, Energy, and the Environment.

Conference moderators, panelists and speakers included University of Colorado Law School professors Phil Weiser, Sarah Krakoff, Britt Banks, and Lakshman Guruswamy.

This conference is made possible through the generous support of donors who sponsored this year’s Martz Sustainability Symposium (including Newmont Mining Corporation) and those who have invested in our Clyde O. Martz Endowed Fund for Natural Resources Management (including Brian Dolan and Davis Graham and Stubbs LLP). The Martz Natural Resources Management Fund was established in the memory …

Can Tribal Courts Issue Domestic Relations Orders That Will Be Honored By Pension Plan Administrators Under Erisa?, Colin Osiecki

Northwestern University Law Review

No abstract provided.

Oversight Hearing On Juvenile Justice In Indian Country: Challenges And Promising Strategies, Addie C. Rolnick

Congressional Testimony

In her testimony before the United States Senate Committee on Indian Affairs, Prof. Rolnick describes her research and recommendations concerning how to improve juvenile justice for American Indian and Alaska Native youth.

A Wind Watcher's Tale: Skinned Alive, C.F. Black

Tribal Law Journal

This is an excerpt from the forthcoming book, A Mosaic of Indigenous Legal Thought: Legendary Tales and Other Writings, by Dr. C.F. Black. Her book is a return to traditional ways of conveying legal and ethical thought, by writing a series of anthropomorphized animal tales, evocative poetry and rhetorical writings.

This excerpt is one of the narrative tales. The introduction included in the excerpt will help guide the reader's understanding of the context and significance this piece.

Generous, Not Just: What Feeds The River Of Tribal Despair And Poverty, Alexandria Mayfield

Tulsa Law Review

No abstract provided.

The Icwa’S Pre-Existing Custody Requirement: A Flexible Approach To Better Protect The Interests Of Indian Fathers, Children, And Tribes, Jeffrey A. Parness, Amanda Beveroth

Children's Legal Rights Journal

No abstract provided.

Spotlight On: Native American Fatherhood And Families, Mike Montgomery

Children's Legal Rights Journal

No abstract provided.

Tribal Authority To Protect Water Resources And Reserved Rights Under Clean Water Act Section 401, Paula Goodman Maccabee

William Mitchell Law Review

No abstract provided.

Revisiting Montana: Indian Treaty Rights And Tribal Authority Over Nonmembers On Trust Lands, Judith V. Royster

Articles, Chapters in Books and Other Contributions to Scholarly Works

In a series of cases beginning with its 1981 decision in Montana v. United States, the US. Supreme Court has diminished the civil authority of Indian tribal governments over nonmembers within the tribes' territories. Initially, the Court confined itself to hobbling tribes' inherent sovereign authority over non-tribal members only on non-Indian ('fee") lands within reservations. In 2001, however, the Court ruled for the first time that a tribe did not possess inherent jurisdiction over a lawsuit against state officers that arose on Indian ("trust') lands. What that decision, Nevada v. Hicks, means for general tribal authority over nonmembers on Indian …

The Indian Child Welfare Act's Waning Power After Adoptive Couple V. Baby Girl, Kathleena Kruck

Northwestern University Law Review

In the 1970s, state authorities began removing Indian children from their homes by the thousands and placing them into foster care, institutional housing, and with white families. To counteract this forced assimilation, Congress passed the Indian Child Welfare Act (ICWA) in 1978. The ICWA conferred many powers previously held by the states to tribal courts and created a preference for Indian children to be placed with their extended family, other members of their tribe, or other Indian families. Despite congressional efforts, the practice of removing Indian children from their homes still persists. Many states resist the ICWA through judicially created …

Music As Cultural Heritage: Analysis Of The Means Of Preventing The Exploitation Of Intangible Cultural Heritage, 14 J. Marshall Rev. Intell. Prop. L. 228 (2015), Ronald Inawat

UIC Review of Intellectual Property Law

What started out as a law school requirement quickly snowballed into an analysis of the relationship between intellectual property and cultural heritage. I am a music guy at heart, having played piano since I was five years old, having composed one song (after multiple tries), and now working directly with musicians and artists. So when I began researching a topic for an article that would connect the dots between the cultural heritage and its respective music, I could only come across legal doctrine and articles that focused heavily on tangible art and artifacts. So what happened to the music? After …

Tribes As Innovative Environmental "Laboratories", Elizabeth Ann Kronk Warner

University of Colorado Law Review

Tribes are not vestiges of the past, but laboratories of the future. - Vine Deloria, Jr1. Indian tribes, because of their distinctive regulatory authority and significant connection to the environment, possess unique capacities to innovate within the field of environmental law in the over fifty-six million acres that make up Indian country. This Article-the first scholarly work to address this aspect of tribal environmental law advocates for the idea of tribes as "laboratories" for examining environmental regulation. Tribes enact environmental regulation by two primary means-in their capacity as "tribes as states" (TAS) and in their capacity as inherent sovereigns-both of …

Tribal Strategies For Protecting And Preserving Groundwater, Stephen V. Quesenberry, Timothy C. Seward, Adam P. Bailey

William Mitchell Law Review

No abstract provided.

I Can See Clearly Now: The Epa's Authority To Regulate Indian Country Under The Clean Air Act, Richard Duncan, Christiana Martenson

William Mitchell Law Review

No abstract provided.

Climate Change Adaptation In Indian Country: Tribal Regulation Of Reservation Lands And Natural Resources, Jamie Kay Ford, Erick Giles

William Mitchell Law Review

No abstract provided.

Redd+: Climate Justice Or A New Face Of Manifest Destiny? Lessons Drawn From The Indigenous Struggle To Resist Colonization Of Ojibwe Forests In The Nineteenth And Twentieth Centuries, Philomena Kebec

William Mitchell Law Review

No abstract provided.

Contesting Unmodulated Deprivation: Sauvé V Canada And The Normative Limits Of Punishment, Efrat Arbel

All Faculty Publications

Despite a pressing need for judicial guidance on the legalities of administrative segregation, Canadian courts have yet to outline clear, comprehensive principles by which to assess its deployment. While some courts have rebuked the Correctional Service of Canada for the improper use of administrative segregation in specific cases, the regulation of the practice more broadly has proven elusive. This article turns to the Supreme Court of Canada’s prisoner voting rights decision in Sauvé v Canada for guidance in this regard. Since its release in 2002, Sauvé has been applied largely in cases involving political rights, and rarely in cases involving …

Congress And Indians, Kirsten Matoy Carlson

Law Faculty Research Publications

Contrary to popular narratives about courts protecting certain minority rights from majoritarian influences, Indian nations lose in the United States Supreme Court over 75 percent of the time. As a result, scholars, tribal leaders, and advocates have suggested that Congress, as opposed to the courts, may be more responsive to Indian interests and have turned to legislative strategies for pursuing and protecting tribal interests. Yet very little is known about the kinds of legislation Congress enacts relating to American Indians. This Article charts new territory in this understudied area and responds to recent calls for more empirical legal studies in …

Cherokee Freedmen And The Color Of Belonging, Lolita Buckner Inniss

Law Faculty Articles and Essays

This Article addresses the Cherokee Nation and its historic conflict with the descendants of its former black slaves, designated Cherokee Freedmen. This Article specifically addresses how historic discussions of black, red, and white skin colors, designating the African-ancestored, aboriginal (Native American), and European-ancestored people of the United States have helped to shape the contours of color-based national belonging among the Cherokee. The Cherokee past practice of black slavery and the past and continuing use of skin color-coded belonging not only undermines the coherence of Cherokee sovereignty, identity, and belonging but also problematizes the notion of an explicitly aboriginal way of …

Plenary Energy, Carla F. Fredericks

Publications

An incompatible relationship exists between the federal trust responsibility over Indian tribes and tribal sovereignty, the conflicting nature of which has been exacerbated by numerous judicial confirmations of the unbridled congressional plenary power over all tribal affairs. Nowhere is there more conflict between the trust responsibility and sovereignty than within the context of mineral resource development on tribal lands. The evolution of the regulatory framework of Indian mineral development can be viewed as a continuum, with maximum trust obligation and minimum tribal sovereignty on one extreme, and an inversion of these two variables on the other. There currently exists pending …

Paint Chip Indians, M. Alexander Pearl

Faculty Articles

This essay is a follow up to a previous article “How to Be an Authentic Indian” published in November of 2014 in the California Law Review Circuit. (M. Alexander Pearl, How to Be an Authentic Indian, 5 Cal. L. Rev. Circuit 392 (November 2014). This essay continues the satiric tone of my previous article and focuses on a single nationally relevant issue. With the current media emphasis on the controversy over recent representations of Indians in television and film (such as Netflix’s Unbreakable Kimmy Schmidt and the Adam Sandler written/directed Ridiculous Six), the essay is topical and examines the critiques …

Exclusive Occupation And Joint Aboriginal Title, Kent Mcneil

Articles & Book Chapters

In Tsilhqot’in Nation v British Columbia, the Supreme Court of Canada for the first time issued a declaration of Aboriginal title. The area to which the declaration applies is part of the traditional territory of the Tsilhqot’in Nation, amounting to the land within the claim area that they were able to prove, to the satisfaction of Justice Vickers at trial, had been in their exclusive occupation at the time of Crown assertion of sovereignty in 1846.

The area claimed in the Tsilhqot’in Nation case was not subject to competing claims by other Aboriginal peoples. However, as is well known, …

Fiduciary Obligations And Aboriginal Peoples, Kent Mcneil

Articles & Book Chapters

No abstract provided.