Indigenous, Indian, and Aboriginal Law Commons^™

The Reconciliation Doctrine In The Mclachlin Court: From A “Final Legal Remedy” To A “Just And Lasting” Process, Constance Macintosh

Articles, Book Chapters, & Popular Press

The issue upon which this paper focuses is one that runs through much of the Aboriginal rights jurisprudence over the last ten years: the idea of “reconciliation." However, the way in which the term is deployed, the values that inform it, the logic that drives it, and the conclusions that it supports have shifted and are continuing to shift. There are considerable differences between how this term was used at the time of Lamer C.J., its meaning for the bench under McLachlin C.J., and the new role it has evolved to take on most recently. In particular, reconciliation has come …

Reassessing Concurrent Tribal-State-Federal Criminal Jurisdiction In Kansas, Aliza Organick

Faculty Scholarship

This Article questions the continued viability of the Kansas Act federal legislation, which extended Indian country criminal jurisdiction to the state of Kansas, while leaving unimpaired preexisting tribal and federal jurisdiction over the same offenses. This Article concludes with recommendations for legislative reform and the consideration of intergovernmental agreements with an eye toward providing a solution that respects modern policies of tribal self-determination, protects the financial resources and judicial economy of state and tribal courts, and protects the rights of defendants who may be subject to multiple prosecutions for the same offense.

Tribal Court Convictions And The Federal Sentencing Guidelines: Respect For Tribal Courts And Tribal People In Federal Sentencing, Barbara L. Creel

Faculty Scholarship

This article critiques a proposal to include tribal court criminal convictions and sentences in the federal sentencing scheme. The proposal, as articulated by Kevin Washburn, calls for an amendment to the Federal Sentencing Guidelines to count tribal court convictions in calculating an Indian defendants criminal history score to determine a federal prison sentence. Currently, tribal court convictions are not directly counted in criminal history, but may be used to support an 'upward departure' to increase the Native defendant's overall federal sentence. Washburn's proposal seeks to gain 'respect' for tribal courts, based upon a premise that tribal convictions must be afforded …

Elena Kagan And The Miracle At Harvard, Kevin Washburn

Faculty Scholarship

During the past ten years, Harvard Law School has been transformed. Current students embrace the institution enthusiastically, appreciating not only the Harvard degree, but the process of earning it. Elena Kagan deserves much of the credit. Kagan led Harvard Law School through this transformation, which is identified here as the "Miracle at Harvard."

David H. Getches: 1942-2011, James N. Corbridge Jr.

Publications

No abstract provided.

Introduction To The Iachr Report On Indigenous And Tribal Peoples' Rights Over Their Ancestral Lands And Natural Resources: Norms And Jurisprudence Of The Inter-American Human Rights System, Taiawagi Helton

American Indian Law Review

No abstract provided.

A Reason To Revisit Maine's Indian Claims Settlement Acts: The United Nations Declaration On The Rights Of Indigenous Peoples, Nicole Friederichs

American Indian Law Review

No abstract provided.

Creating Bright-Line Rules For Tribal Court Jurisdiction Over Non-Indians: The Case Of Trespass To Real Property, Grant Christensen

American Indian Law Review

The 2010 passage of the Tribal Law and Order Act will invest significantly more resources in tribal courts. As tribal courts expand, conflicts between sovereignties - tribal, state, and federal - are likely to occur with much greater frequency. Tribal court civil jurisdiction over non-Indians will be among the issues most frequently appealed to federal courts. I offer this piece to propose a new and novel solution - that tribal courts, through a piecemeal process, be extended absolute civil jurisdiction over non-Indians for those civil offenses over which tribes have the greatest interest. This article takes one of the most …

This Land Is Your Land, This Land Is My Land? Why The Cobell Settlement Will Not Resolve Indian Land Fractionation, Jered T. Davidson

American Indian Law Review

No abstract provided.

Indigenous And Tribal Peoples' Rights Over Their Ancestral Lands And Natural Resources: Norms And Jurisprudence Of The Inter-American Human Rights System, Inter-American Commission On Human Rights

American Indian Law Review

No abstract provided.

Defending The "Indefensible": Replacing Ethnocentrism With A Native American Cultural Defense, Megan H. Dearth

American Indian Law Review

No abstract provided.

Yours, Mine, Ours? Renovating The Antiquated Apartheid In The Law Of Property Division In Native American Divorce, Vickie Enis

American Indian Law Review

No abstract provided.

Self Interested: Protecting The Cultural And Religious Privacy Of Native Americans Through The Promotion Of Property Rights In Biological Materials, Kimberly Self

American Indian Law Review

No abstract provided.

Enough Rope: Why United States V. White Plume Was Wrong On Hemp And Treaty Rights, And What It Could Cost The Federal Government, Lori Murphy

American Indian Law Review

No abstract provided.

Five Tribes' Water Rights: Examining The Aamodt Adjudications' Mechem Doctrine To Predict Tribal Water Rights Litigation Outcomes In Oklahoma, Taylor Henderson

American Indian Law Review

No abstract provided.

Protecting Pocahontas's World: The Mattaponi Tribe's Struggle Against Virginia's King William Reservoir Project, Allison M. Dussias

American Indian Law Review

No abstract provided.

Changed Embraces, Changes Embraced? Renouncing The Heterosexist Majority In Favor Of A Return To Traditional Two-Spirit Culture, Trista Wilson

American Indian Law Review

No abstract provided.

Osage Nation V. Irby: The Tenth Circuit Disregards Legal Precedent To Strip Osage County Of Its Reservation Status, Barbara Moschovidis

American Indian Law Review

No abstract provided.

Preserving Indian Preference For Native American Self-Governance, Freya Ray

American Indian Law Review

No abstract provided.

Williams V. Lee And The Debate Over Indian Equality, Bethany R. Berger

Michigan Law Review

Williams v. Lee (1959) created a bridge between century-old affirmations of the immunity of Indian territories from state jurisdiction and the tribal self-determination policy of the twentieth century. It has been called the first case in the modern era of federal Indian law. Although no one has written a history of the case, it is generally assumed to be the product of a timeless and unquestioning struggle of Indian peoples for sovereignty. This Article, based on interviews with the still-living participants in the case and on examination of the congressional records, Navajo council minutes, and Supreme Court transcripts, records, and …

Indigeneity And Sovereignty In Canada's Far North: The Arctic And Inuit Sovereignty, Gordon Christie

All Faculty Publications

As the Arctic “opens up” to exploration and economic development, a new stage in colonization looms. This essay builds toward a vision of Arctic nation-states meeting with the Inuit to work out how they might together come to an understanding of how decisions about the future of the Arctic may be appropriately made. The Inuit are currently actively resisting the new wave of colonization within a framework built on the bedrock of nation-state sovereignty. The notion of “sovereignty” serves as a keystone in a system of controlling narratives, functioning to generate and police ways of thinking about decision-making processes, a …

Sentencing Circles, Clashing Worldviews, And The Case Of Christopher Pauchay, Toby S. Goldbach

All Faculty Publications

The case of Christopher Pauchay demonstrates some of the differences between predominant Euro-Canadian and First Nations approaches to dispute resolution. The principles of sentencing circles sometimes overlap with the principles of restorative justice and suggest their potential incorporation into the criminal justice system. The use of alternative processes that share some common values is not enough to overcome to chasm between Euro-Western and Aboriginal justice. Where underlying worldviews diff er, those who can choose between competing values amidst limited possibilities will likely choose the values that refl ect the conventional system. A comparison of Euro-Western and Aboriginal approaches to crime …

Indigenous Political Participation: The Key To Rights Realization In The Andes, Stephanie Selekman

Human Rights & Human Welfare

"There is no way back, this is our time, the awakening of the indigenous people. We'll keep fighting till the end. Brother Evo Morales still has lots to do, one cannot think that four years are enough after 500 years of submission and oppression,” said Fidel Surco, a prominent indigenous leader, reflecting on Bolivia’s first indigenous president entering his second term (Carroll & Schipani 2009).

The Andean region is particularly appropriate for examining indigenous political rights because 34-40 million indigenous people reside mostly in this region. The actualization of human rights for Andean indigenous groups is an inherently complex issue, …

Ho-Chunk Nation Tribal Law Profile, Daniel B. Snyder

Tribal Law Journal

In this tribal profile provides an excellent point of reference for practitioners dealing with any legal matter within the Ho-Chunk Nation. Starting with an overview of the legal history of the tribe, including modern government and law, the author examines the traditional legal practices and responsibilities of the Ho-Chunk. Mr. Snyder then explores the modern judicial and legislative branches, and their work to preserve the tribe's traditional laws and customs.

Ogalala Sioux Tribal Profile, Karen Kimbro Chase

Tribal Law Journal

This profile offers an excellent overview of Oglala Sioux law, both traditional and modern. Like many tribes, the Indian Reorganization Act had a major impact on the contemporary law of the Oglala Sioux. While the IRA resulted in tribal constitutions that reflected the values of the U.S. Constitution, this profile examines the traditional and customary law that was subsequently incorporated into the Oglala Sioux Constitution. This profile includes a brief history of the Oglala Sioux, overview of traditional law, governmental structure, summary of contemporary law, and history of political activism.

Navajo Nation San Juan Basin In New Mexico Water Rights Settlement Agreement Of 2010, Navajo Nation, New Mexico, United States

Native American Water Rights Settlement Project

Settlement Agreement: Navajo Nation San Juan Basin, NM Water Rights Settlement (Dec. 17, 2010) Parties: Navajo Nation, US, NM. This Settlement relates to the Navajo Nation’s water rights in the San Juan River Basin located in NM. It is a part of the Juan River adjudication. It reconciles the Apr. 19, 2005 agreement with the Settlement Act. Allottees may make individual water right claims based upon historic and existing uses found in the Joint Hydrographic Survey Report. This Settlement finalizes all claims the Nation could make to the San Juan River Basin and settles all causes of action against the …

Judicial System Rises To Challenges Of Times, Kevin Washburn

Faculty Scholarship

No abstract provided.

Crow Water Rights Settlement Act Of 2010, United States 111th Congress

Native American Water Rights Settlement Project

Federal Legislation: Title IV: Crow Tribe Water Rights Settlement - Crow Tribe Water Rights Settlement of 2010 in the Claims Resolution Act of 2010 (PL111-291| 124 Stat 3097). The Act ratifies, authorizes, and confirms the water rights 1999 Compact between the Crow Tribe and MT. The DOI Secretary shall promptly execute the Compact and comply with applicable environmental acts and regulations. The Act provides for: 1) the Tribe to a) rehabilitate and improve the Crow Irrigation Project; and b) Reclamation to construct the municipal, rural, and industrial water system; 2) creates a Project Management Committee made up of the Tribe, …

Taos Pueblo Indian Water Rights Settlement Act Of 2010, United States 111th Congress

Native American Water Rights Settlement Project

Federal Legislation: Claims Resolution Act of 2010, Title V: Taos Pueblo Indian Water Rights Settlement of 2010 (Sec. 501) Parties: Pueblo of Taos, NM, US, Town of Taos, El Prado Water & Sanitation District, Acequia Madre del Rio Lucero y del Arroyo Seco, Acequia Madre del Prado, Acequia del Monte, Acequia Madre del Rio Chiquito, Upper Ranchitos Mutual Domestic Water Consumers Assn, Upper Arroyo Hondo Mutual Domestic Water Consumers Assn, Llano Quemado Mutual Domestic Water Consumers Assn. Federal Legislation to approve, ratify, and confirm the Taos Pueblo Indian Water Rights Settlement; to authorize and direct the Secretary to execute the …

White Mountain Apache Tribe Water Rights Quantification Act Of 2010, United States 111th Congress

Native American Water Rights Settlement Project

Federal Legislation: Claims Settlement Act of 2010, TITLE III—White Mountain Apache Tribe Water Rights Quantification, PL111-291| 124 Stat 3064, 3073 (Dec. 8, 2010). Parties: White Mountain Apache Tribe, US, AZ. The Act ratifies, authorizes, and confirms the WMAT Water Rights Quantification settlement; authorizes the DOI Secretary to execute the and take all necessary action; to authorize appropriations; and, to permanently resolve certain damages and water rights in the general adjudication of the Gila River System and Little CO River System. The provides for: 1) environmental compliance; 2) tribal water rights; 3) CAP reallocation; 4) tribal leasing, distributing, exchanging or allocation …