Indigenous, Indian, and Aboriginal Law | Open Access Articles

Indian Law On State Bar Exams: A Situational Report, Gloria Valencia-Weber

Faculty Scholarship

No abstract provided.

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The Mote In The Common Law's Eye: Dislodging Europocentric Barriers To Just Recognition Of Native Title In The Wake Of Yorta Yorta, Howard L. Highland

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

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Illegal Alien? The Immigration Case Of Mohawk Ironworker Paul K. Diabo, Gerald F. Reid

Sociology Faculty Publications

In March of 1927 Paul K. Diabo, a thirty-six-year-old Mohawk ironworker from Kahnawake (Mohawk Nation Territory), Quebec, appeared before Judge Oliver B. Dickinson in federal court in Philadelphia to contest his deportation to Canada. According to the Department of Immigration, which had arrested him a year earlier, Diabo had violated the Immigration Act of 1924 and should be considered an illegal alien. As a member of the Rotinonhsionni (Iroquois) Confederacy, Diabo contended that he had a right to cross the international border without interference and restriction—a right, he argued, that had been recognized by the Jay Treaty of 1794. Diabo’s …

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Tribe V. Jackson, 2004-Ap-14 (Blkft. Tr. Ct. App., February 20, 2007), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court determined that the case has not met the timelines for appeal, and the Order of Judge Johnson (April 4, 2005) and Sentencing Order (May 27, 2005) are upheld. Further, the case was remanded back to the lower court to be dealt with. The court found that there was no appeal filed.

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The New Federal Indian Law, Matthew L.M. Fletcher

ExpressO

Is federal Indian law dead? Despite a declining docket during the Rehnquist Court, the Supreme Court continued to take a disproportionately high number of Indian law cases – and deciding more than 75 percent of them against tribal interests. While many scholars suggest that the Court’s conservative views drive these Indian law decisions and criticize the Court for failing to follow foundational principles of federal Indian law, this Article asserts that the Court’s reasons for granting certiorari and for deciding against tribal interests in these cases are not Indian law-related. Instead, the Court identifies important, unrelated constitutional concerns that appear …

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Tribe V. Wippert, Blackfeet Appellate Court

Court Decisions

In the Blackfeet tribal Court of Appeals, the Court reviewed whether the defendant’s rights were violated when the lower court sustained an objection by the prosecutor, denying defense counsel’s assertion that he had the right to review evidence prior to trial. In this case, the defendant did not appear for his initial trial setting and his defense counsel withdrew and transferred the case to another attorney. That attorney noticed that none of the discovery evidence was given to him, in the file, and only the underlying warrant was available to him. The Judge ordered a continuance, without motion, so the …

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Indigenous Laws: Some Issues, Considerations And Experiences, Val Napoleon, Richard Overstall

Aboriginal Policy Research Consortium International (APRCi)

No abstract provided.

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Intent Matters: Assessing Sovereign Immunity For Tribal Entities, Gregory J. Wong

Washington Law Review

Indian tribes create corporations and agencies, such as casinos and economic development organizations, to further tribal goals. When such an entity is sued, the courts must determine whether the entity shares in the tribe's inherent sovereign immunity. Like tribes, the federal and state governments also create corporations and agencies to further their governmental goals. To determine whether such a federal entity shares in the federal government's sovereign immunity, the courts ask if Congress intended to grant the entity immunity from suit. For state entities, courts ask if the state government intended to extend its sovereign immunity to the entity by …

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Intent Matters: Assessing Sovereign Immunity For Tribal Entities, Gregory J. Wong

Washington Law Review

Indian tribes create corporations and agencies, such as casinos and economic development organizations, to further tribal goals. When such an entity is sued, the courts must determine whether the entity shares in the tribe's inherent sovereign immunity. Like tribes, the federal and state governments also create corporations and agencies to further their governmental goals. To determine whether such a federal entity shares in the federal government's sovereign immunity, the courts ask if Congress intended to grant the entity immunity from suit. For state entities, courts ask if the state government intended to extend its sovereign immunity to the entity by …

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Consent Decree Approving Entry Of Partial Final Decrees Determining The Rights Of The Us As Trustee For The Benefit Of The Nez Perce Tribe & The Nez Perce Tribe To The Use Of Water In The Snake River Basin Within Idaho And The Partial Final Decrees Determining Minimum Stream Flow Water Rights Held By The Idaho Water Resources Board, District Court Of The Fifth Judicial District Of The State Of Idaho In And For The County Of Twin Falls

Native American Water Rights Settlement Project

Post-settlement court orders/decree. Parties: Nez Perce Tribe, ID, Idaho, US, United States, Non-Indian Water Users listed in Attachment 1. Decree incorporates Special Master’s Term Sheet and partial final decrees for federal reserved water rights held by the US as trustee for the Tribe, for multiple use and for springs or fountains as well as state minimum stream flow water rights held by Idaho Water Resources Board. All Nez Perce claims and US claims for the Tribe which not found in the partial final decrees are dismissed with prejudice. Decrees were entered in compliance with Sec. 42-1411 A, Id. Code. The …

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Order Granting Joint Motion For Approval And Entry Of Consent Decree Approving Entry Of Final Decrees Determining The Rights Of The United States As Trustee For The Benefit Of The Nez Perce Tribe To The Use Of Water In The Snake River Basin Within Idaho And Partial Final Decrees Determining Minimum Stream Flow Water Rights Held By The Idaho Water Resource Board, District Court Of The Fifth Judicial District Of The State Of Idaho In And For The County Of Twin Falls

Native American Water Rights Settlement Project

Court Document: Consent Decree Approving Entry of Partial Final Decrees Determining the Rights of the US as Trustee for the Benefit of the Nez Perce Tribe & the Nez Perce Tribe to the Use of Water in the Snake River Basin within Idaho and the Partial Final Decrees Determining Minimum Stream Flow Water Rights Held by the Idaho Water Resources Board. Covers off-reservation instream flow claims, springs and fountains claims, multiple-use claims and Idaho Water Resource Board Claims, and includes standard of review. Order: dismisses objections by DeVeny; grants Joint Motion for approval and entry of Final Decrees and disallows …

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Native Communities And Climate Change: Protecting Tribal Resources As Part Of National Climate Policy: Executive Summary, Jonathan M. Hanna, University Of Colorado Boulder. Natural Resources Law Center, Western Water Assessment (Program)

Books, Reports, and Studies

7 p. : col. ill., maps

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Native Communities And Climate Change: Protecting Tribal Resources As Part Of National Climate Policy: Report, Jonathan M. Hanna, University Of Colorado Boulder. Natural Resources Law Center, Western Water Assessment (Program)

Books, Reports, and Studies

67 p.

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Public Safety And Criminal Jurisdiction, Conference Transcript: The New Realism: The Next Generation Of Scholarship In Federal Indian Law, Kevin Washburn

Faculty Scholarship

No abstract provided.

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The Supreme Court's Legal Culture War Against Tribal Law, Matthew L.M. Fletcher

Intercultural Human Rights Law Review

Indian tribes have long governed themselves in a manner that developed far different than the Anglo-American legal system. Many indigenous cultures relied upon an oral tradition, inextricably intertwined with their languages, to make the ways of their people known. In these cultures, social mores tied to the geographies of traditional territories developed to ensure a form of law and order, and social control existed sufficient to maintain the societies. Many indigenous cultures had written laws as well. These rules survived after contact with the European nations and survive today in modified form. As indigenous societies reacted, changed, and sometimes all …

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Tribal, State, And Federal Cooperation To Achieve Good Governance, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

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Taking Voting Rights Seriously: Race And The Integrity Of Democracy In America, Aliza Organick

Faculty Scholarship

This article demonstrates that secure and reliable elections are easily achievable in the United States - if those with economic and political power so desired. Given the costs implicit in continued clouds of legitimacy over those currently governing this nation, one would therefore expect strong and decisive action to remedy once and for all race-based electioneering games and faulty voting machinery. The thesis of this article, however, is that this is very unlikely to occur; rather, those with power seem to be exercising an option to use race instrumentally to foil the democratic process and to enhance their electoral interests. …

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The Generative Structure Of Aboriginal Rights, Brian Slattery

Articles & Book Chapters

Are aboriginal rights historical rights -- rights that gained their basic form in the distant past? Or are they generative rights -- rights that, although rooted in the past, have the capacity to renew themselves, as organic entities that grow and change? Section 35(1) of the Constitution Act, 1982 provides little guidance on the point, referring ambiguously to existing aboriginal and treaty rights. In the Van der Peet case, decided in 1996, the Supreme Court of Canada characterized aboriginal rights primarily as historical rights, moulded by the customs and practices of aboriginal groups at the time of European contact, with …

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Labor Regulation, Union Avoidance And Organized Labor Relations Strategies On Tribal Lands: New Indian Gaming Strategies In The Wake Of San Manuel Band Of Indians V. National Labor Relations Board, 40 J. Marshall L. Rev. 1259 (2007), D. Michael Mcbride Iii, H. Leonard Court

UIC Law Review

No abstract provided.

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Preserving The Seeds Of Gender Fluidity: Tribal Courts And The Berdache Tradition, Andrew Gilden

Michigan Journal of Gender & Law

This Article outlines the particular cultural characteristics giving rise to traditional berdachism, the means by which American policies fostered their decline, and the Navajo tribal courts' re-infusion of these characteristics into contemporary jurisprudence. By tracking the interplay between the traditional values of child autonomy, gender equality, and tribal collectivism, the rise, fall and potential reemergence of the berdache tradition can be analyzed as resulting from shifts in its determinative cultural elements.

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This Land Is Your Land, This Land Is My Land: Cayuga Indian Nation Of New York V. Pataki, Katherine E. Germino

Villanova Law Review (1956 - )

No abstract provided.

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Dissonant Harmonization: Limitations On "Cash N' Carry" Creativity, 70 Alb. L. Rev. 1163 (2007), Doris E. Long

UIC Law Open Access Faculty Scholarship

Even though creativity lies at the heart of present copyright laws, the impulse to create-or more precisely what triggers such creativity-remains largely unexamined. Coinciding with the digital demand for access to information, new standards for "cash 'n' carry" creativity are being urged with little regard to what level of authorial3 control may be required to ensure continued enrichment of the public domain through the creation of vibrant new works. Scientific, psychological, and sociological studies indicate that "cash 'n' carry" creativity fails to implement the critical triggering mechanisms for the creative impulse. Moreover, such "cash 'n' carry" attitudes toward authors' rights …

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Loving Indian Style: Maintaining Racial Caste And Tribal Sovereignty Through Sexual Assimilation, Carla Pratt

Faculty Articles

Scholars have generally characterized Loving v. Virginia as a case about the line separating whites from blacks. But within the subtext of Loving there is an additional narrative about the line separating blacks from Indians. State laws governing miscegenation had a profound impact on tribal law and the practices of tribal people by indirectly regulating interracial relations between certain nonwhite groups of people and rendering blacks as undesirable partners for marriage.

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A Penny For Your Thoughts: Private And Collective Contracting For Traditional Medicinal Knowledge Modeled On Bioprospecting Contracts In Costa Rica, Katie Bates

Georgia Law Review

For decades, pharmaceutical companies have prospected biologically diverse developing countries for plants and molecules that may form the foundations of groundbreaking medicines. In many cases, native populations have aided researchers by directing them to the plants used in their traditional medicines. Only recently, however, have native peoples pushed for compensation for this valuable contribution. The governments of developing countries, too, have begun to assert legal and physical control over their natural resources, making access to these resources by pharmaceutical companies more difficult and costly. Simultaneously, scientific developments have made drug discovery through alternative methods more feasible. Despite these changes, it …

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A Race Or A Nation? Cherokee National Identity And The Status Of Freedmen's Descendants, S. Alan Ray

Michigan Journal of Race and Law

This Article examines the Cherokee Freedmen controversy to assess whether law and biology can function as sufficient models for crafting Cherokee identity at this crucial moment in the tribe's history. The author will argue that while law and biology are historically powerful frames for establishing tribal self-identity, they are inadequate to the task of determining who should enjoy national citizenship. The wise use of sovereignty, the author suggests, lies in creating a process of sustained dialogical engagement among all stakeholders in the definition of Cherokee citizenship on the question of Cherokee identity. This dialogue should ideally have been undertaken before …

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The Pocahontas Exception: The Exemption Of American Indian Ancestry From Racial Purity Law, Kevin Noble Maillard

Michigan Journal of Race and Law

"The Pocahontas Exception" confronts the legal existence and cultural fascination with the eponymous "Indian Grandmother." Laws existed in many states that prohibited marriage between Whites and non- Whites to prevent the "quagmire of mongrelization." Yet, this racial protectionism, as ingrained in law, blatantly exempted Indian blood from the threat to White racial purity. In Virginia, the Racial Integrity Act of 1924 made exceptions for Whites of mixed descent who proudly claimed Native American ancestry from Pocahontas. This Paper questions the juridical exceptions made for Native American ancestry in antimiscegenation statutes, and analyzes the concomitant exemptions in contemporary social practice. With …

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Rethinking Customary Law In Tribal Court Jurisprudence, Matthew L.M. Fletcher

Michigan Journal of Race and Law

Customary law still appears in many of the decisions of American state and federal courts. Modern courts rely less on customary law, part and parcel of the English common law adopted and adapted by the Founders of the United States, with statutory and administrative law dominating the field. In contrast, the importance of customary law in American Indian tribal courts cannot be understated. Indian tribes now take every measure conceivable to preserve Indigenous cultures and restore lost cultural knowledge and practices. Tribal court litigation, especially litigation involving tribal members and issues arising out of tribal law, often turns on the …

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Theseus, The Labyrinth, And The Ball Of String: Navigating The Regulatory Maze To Ensure Enforceability Of Tribal Gaming Contracts, 40 J. Marshall L. Rev. 1123 (2007), Heidi Mcneil Staudenmaier, Ruth K. Khalsa

UIC Law Review

No abstract provided.

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Law's Empire, W. Wesley Pue, Rob Mcqueen

All Faculty Publications

Scholars of culture, humanities and social sciences have increasingly come to an appreciation of the importance of the legal domain in social life, while critically engaged socio-legal scholars around the world have taken up the task of understanding "Law's Empire" in all of its cultural, political, and economic dimensions. The questions arising from these intersections, and addressing imperialisms past and present forms the subject matter of a special symposium issue of Social Identities under the editorship of Griffith University's Rob McQueen, and UBC's Wes Pue and with contributions from McQueen, Ian Duncanson, Renisa Mawani, David Williams, Emma Cunliffe, Chidi Oguamanam, …

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Reparations, Social Reconciliation, And The Significance Of Place: A Legal And Philosophical Examination Of Indigenous Cases In The United States And Their Global Implications, Jill M. Fraley

Scholarly Articles

During genocide, populations are frequently displaced from their homelands. In the process of reparations, displacement is often viewed as a problem of shelter, food, and safety. In this framework, land is treated as an economic commodity—any given piece of land is interchangeable with another or for money. This approach is a product of Enlightenment thinking, which emphasizes the rights of the individual over communal rights to land, and conceptualizes land and social identity as strongly separated. This Enlightenment framework of rights, and the accompanying de-emphasis of place, is particularly strong in the United States. Because American legal principles have played …

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Full-Text Articles in Indigenous, Indian, and Aboriginal Law

Indian Law On State Bar Exams: A Situational Report, Gloria Valencia-Weber

Faculty Scholarship

The Mote In The Common Law's Eye: Dislodging Europocentric Barriers To Just Recognition Of Native Title In The Wake Of Yorta Yorta, Howard L. Highland

Washington and Lee Journal of Civil Rights and Social Justice

Illegal Alien? The Immigration Case Of Mohawk Ironworker Paul K. Diabo, Gerald F. Reid

Sociology Faculty Publications

Tribe V. Jackson, 2004-Ap-14 (Blkft. Tr. Ct. App., February 20, 2007), Blackfeet Appellate Court

Court Decisions

The New Federal Indian Law, Matthew L.M. Fletcher

ExpressO

Tribe V. Wippert, Blackfeet Appellate Court

Court Decisions

Indigenous Laws: Some Issues, Considerations And Experiences, Val Napoleon, Richard Overstall

Aboriginal Policy Research Consortium International (APRCi)

Intent Matters: Assessing Sovereign Immunity For Tribal Entities, Gregory J. Wong

Washington Law Review

Intent Matters: Assessing Sovereign Immunity For Tribal Entities, Gregory J. Wong

Washington Law Review

Native American Water Rights Settlement Project

Native American Water Rights Settlement Project

Native Communities And Climate Change: Protecting Tribal Resources As Part Of National Climate Policy: Executive Summary, Jonathan M. Hanna, University Of Colorado Boulder. Natural Resources Law Center, Western Water Assessment (Program)

Books, Reports, and Studies

Native Communities And Climate Change: Protecting Tribal Resources As Part Of National Climate Policy: Report, Jonathan M. Hanna, University Of Colorado Boulder. Natural Resources Law Center, Western Water Assessment (Program)

Books, Reports, and Studies

Public Safety And Criminal Jurisdiction, Conference Transcript: The New Realism: The Next Generation Of Scholarship In Federal Indian Law, Kevin Washburn

Faculty Scholarship

The Supreme Court's Legal Culture War Against Tribal Law, Matthew L.M. Fletcher

Intercultural Human Rights Law Review

Tribal, State, And Federal Cooperation To Achieve Good Governance, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

Taking Voting Rights Seriously: Race And The Integrity Of Democracy In America, Aliza Organick

Faculty Scholarship

The Generative Structure Of Aboriginal Rights, Brian Slattery

Articles & Book Chapters

Labor Regulation, Union Avoidance And Organized Labor Relations Strategies On Tribal Lands: New Indian Gaming Strategies In The Wake Of San Manuel Band Of Indians V. National Labor Relations Board, 40 J. Marshall L. Rev. 1259 (2007), D. Michael Mcbride Iii, H. Leonard Court

UIC Law Review

Preserving The Seeds Of Gender Fluidity: Tribal Courts And The Berdache Tradition, Andrew Gilden

Michigan Journal of Gender & Law

This Land Is Your Land, This Land Is My Land: Cayuga Indian Nation Of New York V. Pataki, Katherine E. Germino

Villanova Law Review (1956 - )

Dissonant Harmonization: Limitations On "Cash N' Carry" Creativity, 70 Alb. L. Rev. 1163 (2007), Doris E. Long

UIC Law Open Access Faculty Scholarship

Loving Indian Style: Maintaining Racial Caste And Tribal Sovereignty Through Sexual Assimilation, Carla Pratt

Faculty Articles

A Penny For Your Thoughts: Private And Collective Contracting For Traditional Medicinal Knowledge Modeled On Bioprospecting Contracts In Costa Rica, Katie Bates

Georgia Law Review

A Race Or A Nation? Cherokee National Identity And The Status Of Freedmen's Descendants, S. Alan Ray

Michigan Journal of Race and Law

The Pocahontas Exception: The Exemption Of American Indian Ancestry From Racial Purity Law, Kevin Noble Maillard

Michigan Journal of Race and Law

Rethinking Customary Law In Tribal Court Jurisprudence, Matthew L.M. Fletcher

Michigan Journal of Race and Law

Theseus, The Labyrinth, And The Ball Of String: Navigating The Regulatory Maze To Ensure Enforceability Of Tribal Gaming Contracts, 40 J. Marshall L. Rev. 1123 (2007), Heidi Mcneil Staudenmaier, Ruth K. Khalsa

UIC Law Review

Law's Empire, W. Wesley Pue, Rob Mcqueen

All Faculty Publications

Reparations, Social Reconciliation, And The Significance Of Place: A Legal And Philosophical Examination Of Indigenous Cases In The United States And Their Global Implications, Jill M. Fraley

Scholarly Articles