Indigenous, Indian, and Aboriginal Law Commons^™

The Existential Subject Of Rights And Private Law: The Example Of The Indian Issue In Brazil, Jose Carlos Moreira Da Silva Filho

Nevada Law Journal

The issue of the juridical subject has been a topic of discussion as part of the rethinking of the classical jurisprudential concepts in Brazil. In particular, some authors have written about the “repersonalization of private law.” This has opened a promising path of inquiry regarding the legal subject for at least four major reasons. First, continental private law is the classical field to discuss the subject of rights. Second, the focus of private law remains the concept of the person, opening an important space to recover the moral philosophy in law. Third, the repersonalization of private law demonstrates the necessity …

Keeping The American Indian Rancher On The Land: A Socio-Legal Analysis Of The Rise And The Demise Of American Indian Ranching On The Northern Great Plains, Raymond Cross

Faculty Law Review Articles

This article evaluates the phenomenon of Indian ranching from its rise in the late nineteenth century to its potential demise in the early years of the twenty-first century. The article examines the many intertwined factors -- political, economic, cultural, ecological, and spiritual -- that account for Indian ranching's rise, as well as its impending demise. The article asserts that Indian ranching could well have become the Indian-civilizing strategy that helped bridge the vast socioeconomic gulf that existed, and still exists, between the Indian and non-Indian peoples of the northern Great Plains. The article concludes that Indian ranching's impending demise can …

Relocation Revisited: Sex Trafficking Of Native Women In The United States, Sarah Deer

Faculty Scholarship

The Trafficking Victim Protection Act of 2000 (TVPA) signaled a comprehensive campaign by the United States (US) government to address the scourge of human trafficking in the US and abroad. The US rhetoric about sex trafficking suggests that the problem originates in foreign countries and/or is recent problem. Neither claim is correct. This article details the historical and legal context of sex trafficking from its origin among the colonial predecessors of the US and documents the commercial trafficking of Native women over several centuries. Native women have experienced generations of enslavement, exploitation, exportation, and relocation. Human trafficking is not just …

Cultural And Economic Self-Determination For Tribal Peoples In The United States Supported By The Un Declaration On The Rights Of Indigenous Peoples, Angelique Eaglewoman

Faculty Scholarship

No abstract provided.

Keynote Address At The University Of Colorado Law Review Symposium: "The Next Great Generation Of American Indian Law Judges, Kevin K. Washburn

University of Colorado Law Review

No abstract provided.

Separate But Unequal: The Federal Criminal Justice System In Indian Country, Troy A. Eid, Carrie Covington Doyle

University of Colorado Law Review

In this Article, Troy Eid, a former United States Attorney for the District of Colorado, and Carrie Covington Doyle conclude that the federal criminal justice system serving Indian country today is "separate but unequal" and violates the Equal Protection rights of Native Americans living and working there. That system discriminates invidiously because it categorically applies only to Native Americans and then only to crimes arising on Indian lands. It is unequal because it is largely unaccountable, needlessly complicated, comparatively under-funded, and results in disproportionately more severe punishments for the same crimes, especially for juveniles. This Article traces the historical foundations …

Finding The Indian Child Welfare Act In Unexpected Places: Applicability In Private Non-Parent Custody Actions, Jill E. Tompkins

University of Colorado Law Review

In recent years, as an increasing number of Indian parents struggle with substance abuse and addiction, the number of abused and neglected Indian children is on the rise. Consequently, state child welfare agencies are overwhelmed, and caseworkers are only able to intervene in the most egregious situations. This understaffing of state agencies forces other family members and non-relatives to step in and care for these children. The federal Indian Child Welfare Act of 1978 ("ICWA") was enacted by the United States Congress to stem the removal, often unwarranted, of an alarmingly high percentage of Indian children from their families through …

A Different Path Forward: The Institute For New England Native American Studies At Umass, J. Cedric Woods

Institute for New England Native American Studies Publications

In New England, interactions between Native peoples and some public institutions have taken divergent paths over the past three decades. State legislatures and the many academic institutions that call the region home have developed different approaches to working with Native peoples.

Immigration, Ethnicity, And Marginalization: The Maya K’Iche Of New Bedford, Jorge Capetillo-Ponce, Gissell Abreu-Rodriguez

Trotter Review

On Tuesday, March 6, 2007, more than 300 armed Immigration and Customs Enforcement (ICE) agents arrested 361 presumed undocumented immigrant workers at the Michael Bianco Inc. factory in New Bedford, Massachusetts. More than half of the workers detained were from Guatemala, the majority belonging to the Maya K’iche (we will use K’iche) community, an ethnic group originally from the mountains of western Guatemala whose members began arriving in the New Bedford area from Providence, Rhode Island, where there is an older K’iche community, during the late 1980s and early 1990s, at the height of a violent confrontation in Guatemala between …

Ahistorical Indians And Reservation Resources, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

The article is an in-depth exploration of the impacts of an Indian tribe's decision to pursue an environmentally destructive form of economic development. The history of Navajo Nation's coal leasing provides the background for the tribe's recent proposal to build a coal-fired power plant and the controversies surrounding the proposal and the environmental review process.

Equal Standing With States: Tribal Sovereignty And Standing After Massachusetts V. Epa, Joseph Mead, Nicholas Fromherz

All Maxine Goodman Levin School of Urban Affairs Publications

In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court held that Massachusetts was entitled to "special solicitude" in the standing analysis because it was sovereign. As a result, Massachusetts passed the standing threshold in a global warming case where an ordinary litigant may have been stymied. The Supreme Court’s analysis raises an interesting question: Are Indian tribes—which have been considered sovereign entities since before the founding, and which hold lands facing heavy environmental pressure—entitled to "special solicitude" as well? We think they should be.

To make this argument, we begin by discussing standing basics; dissecting Massachusetts v. …

The Duty To Consult And Accommodate: Procedural Justice As Aboriginal Rights, Lorne Sossin

Articles & Book Chapters

This article explores the development and application of the “duty to consult and accommodate” from an administrative law perspective and more broadly con- siders the promise and limitations of procedural justice through the context of ab- original rights. The question addressed in this article is the relationship between procedural justice and substantive outcomes in the context of aboriginal rights in Canada. More specifically, by developing a “duty to consult and accommodate” on the part of the Crown with aboriginal communities who have asserted but not yet proven land claims, has the Court advanced the potential for reconciliation, or provided a …

Stories In Mexico And The United States About The Border: The Rhetoric And The Realities, Gloria Valencia-Weber, Antoinette Sedillo Lopez

Faculty Scholarship

Our goal in this article is to demonstrate how perspective, political agenda, and personal experiences affect how stories about the Mexico-U.S. Border are framed. The framing is shaped by audience and emotional appeal, as well as political agenda. Stories framed and portrayed as personal experiences and stock narratives about a group or country can shape the attitude, experience, and behavior of others. Our discussion will: 1) examine the concept of using word choices and metaphors as devices in storytelling to frame political, economic and social issues, which are meant to evoke certain emotional responses among specific audiences in the immigration …

The Next Great Generation Of American Indian Law Judges, Kevin Washburn

Faculty Scholarship

This short essay, which was the keynote address at a conference of the same title in 2010, argues that the best predictors of good Indian law judging are education, familiarity and experience. People who have been raised believing that there are only two orders of government in the United States are often surprised when they encounter the legal existence of Indian tribes. Most judges become more comfortable with notions of tribal sovereignty after prolonged exposure to cases discussing those principles. Thus, educating all Americans about Indian tribes in primary and secondary education would produce better policy-makers in general and better …

Clarifying Cultural Property, Kristen A. Carpenter, Sonia K. Katyal, Angela R. Riley

Publications

Author Stephenie Meyer forever altered the cultural existence of Quileute Indians when she wrote them into her Twilight novels. Now a veritable global phenomenon complete with books, movies, and affiliated merchandise, the Twilight series depicts young, male members of the tribe as vampire-fighting werewolves who ferociously defend a peace and territorial treaty made with local bloodsuckers. In reality, the Quileute Tribe consists of approximately 700 Indians, many of whom live on a remote reservation in the Pacific Northwest, a tiny parcel of the once vast Quileute territory. Since Twilight's unprecedented international success, the Quileute have been overwhelmed with fans …

The Last Indian Raid In Kansas: Context, Colonialism, And Philip P. Frickey's Contributions To American Indian Law, Sarah Krakoff

Publications

To many, American Indian law is a remote and anomalous area of the law. To others, including Professor Phil Frickey, themes in American Indian law are central to our identity as a nation, and lessons from the field inform broader understandings of the competencies and limitations of the federal judiciary. One of Professor Frickey’s recurring scholarly arguments is that the federal courts are most within their areas of institutional competence when they approach contemporary Indian law questions as structural disputes between sovereigns, rather than as individual conflicts amenable to the application of mainstream public law values. An event described as …

Values In Transition: The Chiricahua Apache From 1886-1914, John W. Ragsdale Jr

Faculty Works

No abstract provided.

The Stories We Tell, And Have Told, About Tribal Sovereignty: Legal Fictions At Their Most Pernicious, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Starting with Chief Justice John Marshall and continuing through to the present Supreme Court, the story of Indian sovereignty has been consistent—it exists only in the most diminished form. Some reasons for this have been premised on the incapacity of Indians to self-govern; others on theories of federalism; while still others on the ambitions of non-Indians. However, the factual premises behind the concept of diminished sovereignty are baseless—legal fictions about the conquest of Indians and their nature. These fictions originated in Chief Justice Marshall’s Indian Law Trilogy and should have vanished long ago when their original purposes were fulfilled, like …

Where Cultures And Sovereigns Collide: Balancing Federalism, Tribal Self-Determination, And Individual Rights In The Adoption Of Indian Children By Gays And Lesbians, Steve Sanders

Articles by Maurer Faculty

This article analyzes the complex interplay between adoption (traditionally a matter reserved to state family law) and the federal Indian Child Welfare Act in the context of adoptions by gays and lesbians.

As a federal statute that partially preempts state law for the benefit of Native Americans, ICWA implicates three sovereigns: the United States, the state where the adoption petition is brought, and the tribe whose child is the focus of the proceeding. This interplay of sovereigns in itself makes Indian child welfare law complicated and interesting. Beyond these sovereign interests, also to be considered are the interests and rights …

Land Use And Water Supply, Susan Kelly, Joanne Hilton

Water Matters!

As New Mexico grows and develops, there is a continuing increase in water demand and the need to provide additional supplies. Recent studies estimate the current population of the State to be about two million people, and the population is expected to grow to approximately 3,400,000 by 2050. Regional water plans project water demands for 16 regions within New Mexico. The total projected new water use associated with population growth—the public water supply and associated commercial sectors, exclusive of agriculture, mining, or other industries—ranges from 280,000 to 380,000 acre-feet per year of new water supply needed in the next 40 …

The Unfulfilled Promise Of The Indian Commerce Clause And State Taxation, Richard Pomp

Faculty Articles and Papers

The Constitution gives Congress the right to “regulate Commerce . . . with the Indian tribes.” Has the Indian Commerce Clause achieved its purpose? Have the Courts interpreted the Clause consistent with Congressional intent? I argue that the answer is, disappointingly, “no.”

The Supreme Court has emasculated and denigrated the Indian Commerce Clause, preventing implementation of the Founders’ vision. The Court has refused to use the Clause as a shield against state taxation.

Chief Justice John Marshall had the opportunity in 1832 in Worcester v. Georgia to shape the Clause into a powerful doctrine. As a ratifier, he was privy …

U.S. Land-Based And Internet Gambling, Would You Bet On A Rosy Future, Joseph M. Kelly

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

You Can't Get There From Here: Igra Needs Reinvention Into A Relevant Statute For A Mature Industry, Antonia Cowan

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

In Theory, In Practice: Judging State Jurisdiction In Indian Country, Carole Goldberg

University of Colorado Law Review

International relations theory suggests some new ways of thinking about the conflict between states and tribes over jurisdiction in Indian country. Realists portray the struggle as a clash of self-interested political actors, with the most powerful prevailing. Norms-driven theory suggests that perceptions of which legal system satisfies widely accepted standards for fair and effective justice will determine which entity is allowed jurisdiction. Since norms-driven analysis seems more prevalent in Supreme Court decisions, this Article pursues its implications for tribal-state jurisdictional conflicts, finding that federal courts and other decisionmakers seem to favor state over tribal jurisdiction because state jurisdiction is perceived …

Resisting Federal Courts On Tribal Jurisdiction, Matthew L.M. Fletcher

University of Colorado Law Review

This Paper is part of a call for a paradigm-shifting reexamination by Indian tribes and Indian people about their place in the American constitutional structure. For tribal advocates to prevail in the federal judiciary, they must force federal judges to rethink everything they know about federal Indian law. There are at least two ways to do this. Tribal advocates and American Indian law scholars must first establish a baseline of knowledge and information about the realities of Indian country in the twenty-first century. This work is nascent and ongoing, if not burgeoning, but frankly is far from enough. A second …

Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide For Judges, Sarah Krakoff

University of Colorado Law Review

This Article provides a summary of the law of tribal civil jurisdiction over persons who are not members of the governing tribe ("nonmembers'), followed by an analysis of trends in the lower courts. It was written to respond to a consensus view at the University of Colorado Law Review Symposium: "The Next Great Generation of American Indian Law Judges," in January 2010, that a concise, practical, yet indepth treatment of this subject would be useful to the judiciary as well as practitioners. The Article traces the development of the Supreme Court's common law of tribal civil judicial jurisdiction from 1959 …

Unequal To The Task: ‘Kapp’Ing The Substantive Potential Of Section 15, Margot Young

All Faculty Publications

This paper reviews the Supreme Court of Canada’s interpretation of s. 15 as a guarantee of substantive equality focusing on R. v. Kapp, a recent key section 15 case, as seen in perspective of Andrews v. Law Society of British Columbia (1989). R. v. Kapp (2008) brings together a dense complex of issues involving equality, affirmative action, race and Aboriginal rights. This paper takes on only a piece of this tangle – focusing on three issues that speak to the Court’s continuing failure to engage fully with the promise of Andrews’ rejection of a formal equality framework for section 15. …

Power Without Law: The Supreme Court Of Canada, The Marshall Decisions, And The Failure Of Judicial Activism, Diana Ginn

Articles, Book Chapters, & Popular Press

In Power Without Law, author Alex Cameron strongly criticizes "incautious judicial activism" which allows the law to become "too malleable to personal judicial predilection."' Cameron makes his arguments primarily through an analysis of a 1999 decision of the Supreme Court of Canada, R v Marshall (No 1)," in which the majority of the Court held that Aboriginal peoples in the Maritimes have a treaty right to hunt, fish and gather, and to sell the products of these activities in order to provide themselves with a moderate livelihood. Cameron also comments on two subsequent and closely related decisions, R v Marshall …

A Man Of Passion And Vision: George Whitewolf, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

George Whitewolf's home was also just a stone's throw from Washington, D.C, and many Natives from the Lakota, Haudenosaunee, Blackfeet, Cheyenne, and countless other nations would stop at George's place for rest and ceremonies as they prepped for their difficult diplomatic visits to Congress and the BIA to discuss treaty rights, protest events like the Longest Walk, and other politically incendiary topics. In the 1970s, George was also very active in the American Indian Movement and his home was under frequent surveillance by the FBI.

Within a few years, George and his allies had made tremendous progress on both fronts …

Measured Sovereignty: The Political Experiences Of Indigenous Peoples As Nations And Individuals, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

On June 18, 2001, in Washington, D.C., Jack Abramoff, a powerful Washington lobbyist, met with Michael Scanlon, a former congressional communications director, to secretly discuss a partnership centered around a firm known as "Capi­tol Carnpaign Strategies" (CCS). Their strategy, later labeled as "Gimme Five," was designed to put in $5 million a year to CCS, revenue that was to be secured from several Indian nations that had grown wealthy through gaming operations. Later, the expression "Gimme Five" was understood as entailing major kickbacks to Abramoff from payments made by any of Scanlon's American Indian clients to Scanlon. By late 2004, …