Indigenous, Indian, and Aboriginal Law Commons^™

Review Of The Cherokee Nation And The Trail Of Tears By Theda Perdue And Michael D. Green, Rowena Mcclinton

Great Plains Quarterly (through 2013)

Past chief of the Cherokee Nation (1985-1995) and social activist Wilma Mankiller remarked, "We are still here." Facing rampant racism, a fraudulent treaty, and then dislocation from their homelands in the southeast, Cherokees not only survived but prevailed. Reflectively, Theda Perdue and Michael Green have summarized the complexity and cunning complicity surrounding the 1838-9 infamous Cherokee displacement known as the Trail of Tears, adding to the scholarship of Tim Garrison, Gary Moulton, Walter Conser, Mary Young, and the late William G. McLoughlin.

They juxtapose the remarkable lives of two adversarial Cherokee figures, Major Ridge (along with his son John Ridge, …

Skull Valley Crossroads: Reconciling Native Sovereignty And The Federal Trust, Lincoln L. Davies

Maryland Law Review

No abstract provided.

Tribal Hunting And Fishing Lifeways & Tribal-State Relations In Idaho, Angelique Eaglewoman

Faculty Scholarship

This article will explore the treaty hunting and fishing rights issues that have arisen in the state of Idaho with the Tribal Nations in the area. First, the background on the area Tribal Nations’ territories will be detailed. Second, the creation of the state of Idaho will be sketched within the framework of federal Indian law. Third, the case law that has developed in Idaho and in the Pacific Northwest regarding the exercise of treaty hunting and fishing rights will be examined. Next, the Rapid River case in Idaho in the late 1970s will serve as an illustration of this …

Accredited Indians: Increasing The Flow Of Private Equity Into Indian Country As A Domestic Emerging Marke, Gavin Clarkson

University of Colorado Law Review

Indian Country is America's domestic emerging market, and, as in other emerging markets, many successful businesses in Indian Country are starving for expansion capital. The U.S. Treasury estimates that the private-equity deficit in Indian Country is $44 billion. While the handful of wealthier tribes might be logical investors in private-equity funds deploying capital in Indian Country, the existing securities laws present a significant impediment. In particular, Regulation D of the Securities Act of 1933 does not treat tribes as "accredited investors," thus denying those tribes the ability to participate in the private-equity market. Since there is no principled reason to …

The Changing Scope Of The United States' Trust Duties To American Indian Tribes: Navajo Nation V. United States, Kimberly C. Perdue

University of Colorado Law Review

The mineral wealth beneath Native American lands has been an enduring source of controversy with respect to treaty relations between Indian Tribes and the United States government and the contours of the United States' trust duties to the Tribes. Whereas in past years the process by which minerals like coal have been converted to capital amounted to blatant exploitation of America's indigenous populations, Indian governments have acquired more control over the extraction of their minerals throughout the twentieth century. That this control remains severely limited both by federal regulations and the United States government's complicity with powerful representatives of the …

Propensity Or Stereotype?: A Bad Evidence Experiment In Indian Country, Aviva Orenstein

Articles by Maurer Faculty

In a significant break with traditional evidence rules and policies, the Federal Rules of Evidence concerning rape and child abuse, Rules 413 and 414, permit the government to admit the accused’s prior sexual misconduct as evidence of character and propensity. Although these rules have been roundly criticized, insufficient attention has been paid to the fact that in allowing propensity evidence for federal sex offenses (as opposed to offenses under state law), these rules disproportionately affect one distinct civilian population: Indians.

The de facto concentration of Rules 413-414 cases in Indian Country raises troubling questions regarding what it means to have …

The Crown's Fiduciary Obligations In The Era Of Aboriginal Self-Government, Kent Mcneil

Articles & Book Chapters

This article confronts the contention that the Crown’s fiduciary obligations are incompatible with Aboriginal self-government. Relying on Supreme Court decisions, it argues instead that the Crown has a fiduciary duty to support Aboriginal autonomy. Consequently, past infringements of the inherent right of self-government by imposition of the band council system violated the Crown’s fiduciary obligations. The appropriate remedy for this breach is restitution, involving federal assistance to enable First Nations to restore and maintain their capacity to govern themselves in accordance with their own traditions and present-day aspirations.

The Uneasy Case For Intellectual Property Rights In Traditional Knowledge, Stephen R. Munzer, Kal Raustiala

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Plains Commerce Bank V. Long Family Land And Cattle Company, Inc.: An Introduction With Questions, Frank Pommersheim

Faculty Publications

No abstract provided.

From Conflict To Cooperation: State And Tribal Court Relations In The Era Of Self-Determination, Aliza Organick, Tonya Kowalski

Faculty Scholarship

State and Tribal sovereigns have historically had a tense relationship, beginning in colonial times, when states vied with the federal government for trading rights and for control of Indian lands. Today, that tension still expresses itself in matters such as gaming compacts, criminal and civil jurisdiction, and taxation, to name just a few. While different sovereigns within a federal system may always vie for resources and power to some extent, it is time for states and Tribes to focus on what a more mutually supportive relationship with Tribal communities has to offer. This Essay explores the history of the two …

The Indian Reorganization Act, The Declaration On The Rights Of Indigenous Peoples, And A Proposed Carcieri "Fix": Updating The Trust Land Aquisition Process, G. William Rice

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Andy Nuñez: His Life, Career, & Contributions, Bridgette Burbank, Jerold Widdison

Water Matters!

For years and years, reaching back well before his time in the Legislature, Rep. Nuñez has been a strong advocate not only for the state’s people but for its land and water resources.

Reflections On Recommendation 12, Naiomi Metallic

Reports & Public Policy Documents

This article focuses on the Marshall Commission Report’s specific recommendation for increased representation of racialized persons within the judiciary.

From Judging Culture To Taxing 'Indians': Tracing The Legal Discourse Of The 'Indian Mode Of Life', Constance Macintosh

Articles, Book Chapters, & Popular Press

In this article I consider how judicial decision making characterizes Indigenous peoples’ culture outside the context of determinations under section 35(1) of the Constitution Act, 1982. I am concerned with how contemporary jurisprudence sometimes subjects Indigenous people to stereotyped tests of Aboriginality when they seek to exercise legislated rights. These common law tests of Aboriginality tend to turn on troubling oppositional logics, such as whether or not the Indigenous person engages in waged labour or commercial activities. These tests arose in historic legislation and policy that were premised on social evolutionary theory and were directed at determining whether an Indigenous …

Public Health Protection And Drinking Water Quality On First Nation Reserves: Considering The New Federal Regulatory Proposal, Constance Macintosh

Articles, Book Chapters, & Popular Press

In January 2009, the federal government issued a discussion paper that details its preferred regulatory route for enabling a legislative framework. This route is to referentially incorporate provincial legislation regarding operational standards through a framework statute, and then develop the details of the regime through regulations to be developed in consultation with First Nations over the next few years. Importantly, the opening sentence of the discussion paper's executive summary expressly connects water and public health. It reads: "The provision of safe drinking water and the effective treatment of wastewater are critical in ensuring the health and safety of First Nations …

Assumptions Regarding Indians And Judicial Humility: Thoughts From A Property Law Lens, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

Negative assumptions regarding Indians can be found in the recent decisions of the U.S. Supreme Court, and attention to these assumptions is required if courts are to base their decisions on how Indians and non-Indians actually impact each other. This brief article uses a property and liability rules framework to argue for judicial restraint when considering cases that could limit tribal sovereignty.

The Voice Of Silence, David E. Wilkins

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

What is silence? Is it the mere absence of words or sound? Or is it a sound itself? Simon and Garfunkel in their early 1960s hit, "The Sound of Silence," focused on a meaning that seems to predominate in our society—that silence implies apathy, or a lack of communication. They sang: "Silence like a cancer grows. Hear my words that I might teach you, Take my arms that I might reach you. But my words like silent raindrops fell, and echoed in the wells of silence."

For Native peoples, silence historically was understood as a means to convey often profound …

Listening To Indigenous Voices: What The Un Declaration On The Rights Of Indigenous Peoples Means For U.S. Tribes, Aliza Organick

Faculty Scholarship

Part I of this article will provide a historical context for the Declaration by surveying the international recognition of the concept of "Indigenous" rights that led to the adoption of the Declaration. Part II will discuss the positions taken by each no-vote state and the reasoning employed by these states in support of those positions. Part Ill will focus on how U.S. Tribes might turn the Declaration into a living document in spite of the United States' continued resistance to do so.

Book Review, Richard B. Collins

Publications

No abstract provided.

In Defense Of Property, Kristen A. Carpenter, Sonia K. Katyal, Angela R. Riley

Publications

This Article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that propertizing culture impedes the free flow of ideas, speech, and perhaps culture itself. In our view, these critiques arise largely because commentators associate "property" with a narrow model of individual ownership that reflects neither the substance of indigenous cultural property claims nor major theoretical developments in the broader field of property law. Thus, departing from the individual rights paradigm, our Article situates indigenous cultural property claims, particularly …

One Step Forward, Two Giant Steps Back: How The "Existing Indian Family" Exception (Re)Imposes Anglo American Legal Values On American Indian Tribes To The Detriment Of Culltural Autonomy, Suzianne D. Painter-Thorne

American Indian Law Review

This article describes the profound changes to American Indian kinship and social structures caused when European and Anglo American legal norms were imposed on American Indian tribes without respect for Indian culture or values. Although these sovereign nations were entitled to self-determination, they were for centuries subjected to laws crafted without their input or representation. This article takes the position that law should come from within a culture to ensure that it reflects that culture's values and permits it to flourish in its own way. When law is imposed by outsiders, it becomes a means of colonization, forcing one group …

Sorting Out Civil Jurisdiction In Indian Country After Plains Commerce Bank: State Courts And The Judicial Sovereignty Of The Navajo Nation, Dale Beck Furnish

American Indian Law Review

No abstract provided.

There Are No Implied Easements Over Trust Lands, M. Brent Leonhard

American Indian Law Review

No abstract provided.

America Cinches Its Purse Strings On Government Contracts: Navigating Section 8(A) Of The Small Business Act Through A Recession Economy, Nicholas M. Jones

American Indian Law Review

No abstract provided.

Texas V. United States: The Legality Of The Secretarial Procedures Following Seminole Tribe Of Florida V. Florida, Gregory R. Mulkey

American Indian Law Review

No abstract provided.

The Bank Began Treating Them Badly: Plains Commerce Bank, The Supreme Court, And The Future Of Tribal Sovereignty, Cullen D. Sweeney

American Indian Law Review

No abstract provided.

Felix Cohen, Anti-Semitism And American Indian Law (Review Of Dalia Tsuk Mitchell, Architect Of Justice: Felix S. Cohen And The Founding Of American Legal Pluralism), Kevin K. Washburn

American Indian Law Review

No abstract provided.

Nagpra Revisited: A Twenty-Year Review Of Repatriation Efforts, Julia A. Cryne

American Indian Law Review

No abstract provided.

Bittle V. Bahe: A Drunken Mistake, Brian Alan Burget

American Indian Law Review

No abstract provided.

How The Anti-Gaming Backlash Is Redefining Tribal Government Functions, Audrey Bryant Braccio

American Indian Law Review

No abstract provided.