Indigenous, Indian, and Aboriginal Law Commons^™

Obligations Of Privilege, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

Little attention is paid to the nature of the high incomes of the rich or to the legal or norm-based obligations the rich owe society. This popular and scholarly inattention reflects the general acceptance of the idea that the rich have earned their high incomes and owe society little. By looking at income equations revealing society's role in high incomes and the obligations of the rich, the Article urges a strengthening of the obligations of the rich and rejects the argument that the legal community ought not consider the moral demands associated with high incomes.

The Original Understanding Of The Indian Commerce Clause, Robert G. Natelson

Faculty Law Review Articles

This article is a comprehensive analysis of the original meaning of and understanding behind the Constitution's Indian Commerce Clause under which Congress claims plenary and exclusive power over federal affairs with Indian tribes. The author concludes that, as originally understood, congressional power over the tribes was to be neither plenary nor exclusive.

'Prisoner Never Gave Me Anything For What He Done:' Aboriginal Voices In The Criminal Court, Shelley A. M. Gavigan

Articles & Book Chapters

Aboriginal people participated in different ways in the criminal process in the early years of the North-West Territories region of Canada, including, as accused persons, as Informants, and as witnesses. Their physical participation was often mediated by interpreters, both linguistic and cultural, and their signatures invariably marked “X” on their depositions. Scholarship that has examined the relationship of Aboriginal peoples to the criminal law has tended to interrogate the criminalization and moral regulation strategies implicit in the process of colonization and domination of the First Peoples. This paper will discuss less visible aspects of the legalized processes of colonization: (1) …

At A Complex Crossroads: Animal Law In Indian Country, Rob Roy Smith

Animal Law Review

Animals play an especially important role in Indian history and culture. The value of animals to the tribes is reflected in every aspect of their culture, from song and dance to land use and treaty terms. Tribes today are still dependent on fish and wildlife for ceremonies and everyday living. The tribes have translated their value for animals into creative ways to protect domestic animals and manage animal populations, including working with state and federal governments to co-manage fish and wildlife populations. This article begins with a discussion of criminal and civil jurisdiction within Indian Country. The article provides a …

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

Faculty Scholarship

Felix Cohen and his work and legacy are discussed in several new books, including an important intellectual biography of Cohen by Dalia Tsuk Mitchell. Using the Mitchell biography as a starting point, this essay discusses an important episode in Cohen's life, involving apparent anti-Semitism at the Department of Justice. Because the episode is not fully explored in this otherwise excellent biography, Cohen and his motivations in Indian law remain a mystery in some respects. The essay also discusses some of the paradoxes of Cohen's key involvement in federal Indian policy and the contemporary importance of some of his legacies in …

Keynote Address: Indigenous Peoples And Their Mark On The International Legal System, S. James Anaya

Publications

No abstract provided.

The Paradoxes Of Cultural Property, Naomi Mezey

Georgetown Law Faculty Publications and Other Works

Many current cultural disputes sound in the legal language and logic of discrimination or hate speech. The focus of this essay is on the claims made explicitly or implicitly on the basis of cultural property. The problem with using ideas of cultural property to resolve cultural disputes is that cultural property encourages an anemic theory of culture so that it can make sense as a form of property. Cultural property is a paradox because it places special value and legal protection on cultural products and artifacts but does so based on a sanitized and domesticated view of cultural production and …

Eliminating Fear Through Recreating Community In Rwanda: The Role Of The Gacaca Courts, Christine M. Venter

Journal Articles

This article describes the institution of the Gacaca Courts in Rwanda, which were set up to try people charged with participating in the 1994 Rwandan genocide. The author examines the options available to the Rwandan government in seeding to prosecute people charged with crimes related to the genocide, and concludes that, while flawed, the gacaca courts were the best option available. The article explores how the courts were developed based on the participatory and restorative ideals of African indigenous legal systems, and how these courts provide an opportunity for some form of "truth telling" in post-genocide Rwanda.

Changing Territoriality, Fading Sovereignty, And The Development Of Indigenous Group Rights, Austen L. Parrish

Articles by Maurer Faculty

For much of the 19th and 20th Centuries, the international community resisted the notion of indigenous peoples' rights. In recent years, however, this has changed. The emergence of indigenous rights in international law may finally be upon us. At the very least, the language of international instruments and certain court decisions indicate a new era is emerging in which international law is beginning to recognize the rights of indigenous peoples. And the public seems increasingly aware of the challenges facing indigenous groups. Despite a past where victories for indigenous peoples' rights have been few, scholars are cautiously optimistic for the …

Joe Stell's Life, Career, & Contributions, Susan Kelly

Water Matters!

Representative Joe Stell's retirement after 20 years in the New Mexico Legislature has many people wondering: How will we fare without his knowledge and history ofNew Mexico water matters? Stell viewed one of his most important roles as that of helping new legislators get up to speed on w ater issues. We hope that Water Matters! may assist in this role by providing legislators with background information on some of the issues they will encounter. The Utton Center also wanted to acknowledge Joe Stell's outstanding service to New Mexico, and we have therefore included a brief sketch about his career, …

Indigenous People And Environmental Justice: The Impact Of Climate Change, Rebecca Tsosie

University of Colorado Law Review

The international dialogue on climate change is currently focused on a strategy of adaptation that includes the projected removal of entire communities, if necessary. Not surprisingly, many of the geographical regions that are most vulnerable to the effects of climate change are also the traditional lands of indigenous communities. This article takes the position that the adaptation strategy will prove genocidal for many groups of indigenous people, and instead argues for recognition of an indigenous right to environmental selfdetermination, which would allow indigenous peoples to maintain their cultural and political status upon their traditional lands. In the context of climate …

The Climate Of Environmental Justice: Taking Stock- Forward, Maxine A. Burkett

University of Colorado Law Review

No abstract provided.

Afterthoughts From A "Buzz Killer", Sarah Krakoff

Publications

No abstract provided.

Inter-American System, Diego Rodriguez-Pinzon

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Inter-American System, Diego Rodriguez-Pinzon

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Indigenous Law And Its Contribution To Global Pluralism, James Anaya

Publications

No abstract provided.

Conference Transcript: The New Realism: The Next Generation Of Scholarship In Federal Indian Law, Sarah Krakoff

Publications

No abstract provided.

Conference Transcript: The New Realism: The Next Generation Of Scholarship In Federal Indian Law, Kristen A. Carpenter, Philip Frickey, John Dossett, Riyaz Kanji, Sarah Hicks

Publications

No abstract provided.

Protecting The Tribal Harvest: The Right To Catch And Consume Fish, Catherine O’Neill

Faculty Articles

This article transcribes a presentation delivered by Professor O’Neill at the EPA-Tribal Leaders Summit, hosted by the Confederated Tribes of the Umatilla Indian Reservation, August 21-25, 2006. This article maintains that the call to protect tribal harvests—to ensure healthy and robust fisheries—is at the core of the sovereign compact between the United States and the various Native nations. The United States is, in fact, legally obligated to uphold this compact, manifested prominently in the treaties. The United States and the states are also legally bound to remedy a long history of attempts to assimilate and discriminate against Native peoples and …

Culture, Self-Determination And Colonialism: Issues Around The Revitalization Of Indigenous Legal Traditions, Gordon Christie

All Faculty Publications

This paper works from the assumption that the power of the state to determine and regulate debate around the reinvigoration of Indigenous legal traditions must be set aside, and that the path forward must be laid out by Indigenous peoples. Working out the implications of this assumption leads to ruminations on the roles that identity, colonialism, culture and self- determination must play in structuring debate around the rebuilding of these legal traditions. The position that begins to emerge from these ruminations focuses attention on the need to control processes of identity formation. Given the historical and ongoing impacts of colonial …

Anywhere But Here: Race And Empire In The Mabo Decision, Emma Cunliffe

All Faculty Publications

The High Court of Australia's decision in Mabo v. Queensland (No.2) is among the most widely known and controversial decisions the Court has yet delivered. In Mabo, a majority of the Court recognised a common law right to native title subject to certain criteria. In this article, I explore the competing visions of legal history that are implicit within Brennan J's leading judgment and Dawson J's dissent. In particular, I discuss the ways in which both of these judgments render an incomplete and contradictory documentary record more coherent than it really is. Suggesting that neither judgment manages to escape the …

Writing The Circle: Judicially Convened Sentencing Circles And The Textual Organization Of Criminal Justice, Emma Cunliffe, Angela Cameron

All Faculty Publications

Trial court judges who work in remote Northern Canadian Aboriginal communities use judicially convened sentencing circles to gather information and develop sentencing recommendations in some intimate violence cases. Proponents claim that judicially convened sentencing circles are a restorative justice practice that heals the offender, his community, and the survivor of the violence. Proponents also look to sentencing circles as a tool to find a just outcome that minimizes Aboriginal men's incarceration. We use a methodology developed by feminist sociologist Dorothy Smith to consider whether the institutional priorities being established and approved by courts in sentencing circle cases provide adequate protection …

Police Powers, Trespass And Expressive Rights Under The Canadian Constitution, W. Wesley Pue

All Faculty Publications

This paper traces the history of the ancillary police powers doctrine in Canadian police law/ constitutional law over the past 40 years. It identifies a doctrine creep wherein a heading of police power which had modest origins has expanded massively. The expansion is spatial and conceptual and reached its reductio ad absurdum when the entire central area of Quebec city was zoned into no-go areas by police acting without legislative authority, claiming the right to erect barricades in public streets, to issue passes (or not) as necessarily ancillary to police powers. The paper includes the only English translation of the …

Alaska Native Rights, Statehood, And Unfinished Business, Robert T. Anderson

Articles

Alaska Native aboriginal rights to land and associated resources were never dealt with in a comprehensive fashion until 1971, when Congress passed the Alaska Native Lands Claims Settlement Act (ANILCA). Although general principles of federal Indian law provided strong support for the proposition that Alaska's Native people held aboriginal title to much of the new state, the Alaska Statehood Act itself carefully disclaimed any effect on aboriginal title. This approach was in keeping with the Congress's past dealings with Alaska Native property rights. This article outlines the history of Alaska Native aboriginal rights through the Statehood Act along with their …

Shoshone-Paiute Tribes Decree For Water In Snake River Basin In Idaho, Fifth Judicial District Court, Twin Falls County, Idaho

Native American Water Rights Settlement Project

Revised Consent Decree: Parties: Shoshone-Paiute Tribes, Idaho, United States, J.R. Simplot Company, Riddle Ranches. Duck Valley Reservation Contents: 1. Procedural History, Offer of Judgment. p.1; 2. Entry of Partial Final Decrees for Federal Reserved Water Rights. p.2; 3. Remaining Water Right Claims Disallowed, p.3; 4. Withdrawal of United States’ Objections to Riddle Ranch p.3; 5. Administration of Water Rights including tribal water code, p.3; 6. Waivers and Releases p.3; 7. No Establishment of Precedent, p.4; 8. Resolution and Finality, p.5; 9. Costs and Fees, p. 5; Attachment A, Consumptive Claim Numbers & Non-Consumptive, Instream Flow Claim Number p. …

Tribe V. Roland, 2002 C-4874-4886 (Blkft. Tr. Ct. App., Dec. 6, 2006), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court reversed a lower court order which dismissed a case for lack of personal jurisdiction. The question before the Court was whether the Defendant was swept into the criminal jurisdiction of the Blackfeet tribe by reason of the “Duro-fix.” (See Duro v. Reina, 45 U.S. 676 (1990), §25 U.S.C. 1301(2), U.S. v. Lara, 541 U.S. 193 (2004), and Means v. Navajo Nation, 432 F.3d 924 (2005)).

The “Duro-fix” is an amendment to the Indian Civil Rights Act which confirmed that an Indian Tribe has “inherent power” to exercise criminal jurisdiction over all …

Fort Mcdowell Indian Community Water Rights Settlement Revision Act Of 2006, United States 109th Congress

Native American Water Rights Settlement Project

Federal Legislation: Fort McDowell Indian Community Water Rights Settlement Revision Act of 2006 (PL 109-373, 120 Stat. 2650) This Act cancels the repayment obligation of the tribe under PL 101-628 and relieves the DOI secretary of its obligation to obtain mitigation property or develop additional farm acreage under the Act. [Source: http://www.gpo.gov/fdsys/pkg/STATUTE-120/pdf/STATUTE-120-Pg2650.pdf]

Public Safety And Criminal Justice, Kevin Washburn

Faculty Scholarship

Conference Transcript from The New Realism: The Next Generation of Scholarship in Federal Indian Law

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Augare V. Baker, 2004-Ca-275 (Blkft. Tr. Ct. App., Oct. 10, 2006), Blackfeet Appellate Court

Court Decisions

The Blackfeet Tribal Court of Appeals upheld the lower court’s opinion denying the defendant’s appeal that the lower court Judge heard nothing but hearsay and that he was unfairly represented. The plaintiff filed a civil complaint in the lower court stating the defendant owed him $6,875 in back rent, missing property, and odd jobs that the defendant promised to do. The Court of Appeals found that the defendant had every opportunity to seek counsel and failed to do so in a timely manner.