Indigenous, Indian, and Aboriginal Law Commons^™

Indigenous Rights Wronged: Extinguishing Native Title In New Zealand, Geoffrey Wg Leane

Dalhousie Law Journal

This article is an account of a recent controversy in New Zealand regarding the common law native title rights of indigenous Maori people to a possible title in certain areas of the foreshore and seabed. In overturning its own precedent the New Zealand Court of Appeal had opened the door to such claims. However, the legislature, overwhelmingly supported by the majority non-Maori population, moved quickly to extinguish the inchoate rights with no guarantee of fair compensation. The lack of any constitutional protection ofcivil and political rights, and the absence of alternative institutional checks and balances, allowed the legislation to proceed …

The Pocahontas Exception: American Indians And Exceptionalism In Virginia’S Racial Integrity Act Of 1924, Kevin Noble Maillard

ExpressO

Most scholarship on Loving v. Virginia (1967) briefly mentions the “Pocahontas Exception,” a subsection of Virginia’s Racial Integrity Act of 1924 which counted persons of limited American Indian ancestry as white. However, few of these works raise the issue outside of a footnote. This article addresses the treatment of Native American ancestry as a curious exception to the threat of racial impurity. Virginia’s antimiscegenation statute sought to eradicate stealth intrusions of tainted blood into the white race, which proponents believed to be threatened “by the quagmire of mongrelization.” Exempted from this racial policing regime were those influential whites, the “First …

Choosing Tribal Law: Why State Choice-Of-Law Principles Should Apply To Disputes With Tribal Contacts, Katherine J. Florey

ExpressO

This article considers a problem in Indian law that has been much commented upon but little explored: When a state court exercises jurisdiction over a case with tribal contacts, what law should govern? While the Supreme Court has developed a detailed set of rules dictating whether cases with tribal contacts should be heard in a state or tribal forum, it has devoted almost no attention to the question of which law should apply once a forum has been chosen. Thus, many state courts have simply assumed, without explicit consideration of the issue, that state law should apply to any case …

A Uniform Probate Code For Indian Country At Last, David M. English

Faculty Publications

AIPRA makes major reforms to the Indian probate system. Federal law long provided that trust or restricted lands and IlM accounts owned by an Indian intestate are to be distributed to the heirs as determined under state law. AIPRA replaces this with one uniform intestacy scheme for the distribution of trust lands and IJIM accounts in lieu of the 30-plus state systems that now apply. AIPRA also fills out the federal law on wills, enacting numerous provisions on the interpretation of wills, most adapted from the Uniform Probate Code. In addition to providing Indian country with a uniform and more …

Law, Narrative, And The Continuing Colonist Oppression Of Native Hawaiians, David Barnard

ExpressO

The article does three things. First, and for the first time, it brings to bear the perspectives of critical race theory, postcolonial theory, and narrative theory on the U.S. Supreme Court’s 2000 decision in Rice v. Cayetano, which dealt a severe blow to Native Hawaiians’ struggles for redress and reparations for a century of dispossession and impoverishment at the hands of the United States. Second, it demonstrates in the concrete case of Hawaii the power of a particular historical narrative—when it is accepted uncritically by the Supreme Court—to render the law itself into an instrument of colonial domination. Third, it …

Tribe V. Rides At The Door, 06-Ap-13 (Blkft. Tr. Ct. App., Feb. 14, 2006), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court refused to overturn a conviction, based on a guilty plea after the defendant claimed she was coerced into giving a guilty plea, because her grounds for appeal were vague and not sufficient to indicate how her due process rights were violated. Guilty plea upheld.

Chickasaw Nation: Interpreting A Broken Statute, Erik M. Jensen

Faculty Publications

This report discusses the Supreme Court's 2001 decision in Chickasaw Nation v. United States, in which the Supreme Court interpreted a provision of the Indian Gaming Regulatory Act that contained contradictory phrases - one suggesting that Indian tribes were exempt from some occupational and excise taxes and one suggesting the contrary. The statute on its face made no sense, and the legislative history was of little help in resolving the ambiguity. Although the statute was clearly broken, the Court concluded that no ambiguity existed and that Congress did not intend to exempt tribes from those various wagering taxes. The author …

Australia's "New Arrangements In Indigenous Affairs": A New Approach Or A New Paternalism?, Joshua M. Piper

Washington International Law Journal

The Aboriginal and Torres Strait Islander Commission (“ATSIC”) opened its doors in 1990 with the main objectives of advising the Australian Commonwealth Government (“Government”) on Indigenous policy and providing services for Indigenous communities and individuals. Fifteen years later, with Indigenous living standards still well behind other Australians, the Government deemed ATSIC a failure and abruptly gutted and abolished the Commission. At the same time, the government transitioned to its New Arrangements in Indigenous Affairs program (“New Arrangements”). The New Arrangements are based on two fundamental ideas: better coordination between governments and agencies; and, most important, engaging and empowering Indigenous communities …

Using International Law More Effectively To Secure And Advance Indigenous Peoples' Rights: Towards Enforcement In U.S. And Australian Domestic Courts, John D. Smelcer

Washington International Law Journal

Over the past three decades, indigenous peoples have effected a remarkable redefinition of their status and rights under international law, giving rise to an emerging distinct customary international law of indigenous peoples’ rights. Though that process is ongoing, the next critical step is enforcing these congealing rights “at home” in the domestic courts of indigenous peoples’ surrounding nations. Australia and the United States provide the most difficult and most revealing contexts in which to explore the possibilities and limitations of this necessary next step. The direct enforcement of the emerging customary international law of indigenous peoples’ rights is not yet …

American Indians, Crime, And The Law, Kevin K. Washburn

Michigan Law Review

This Article evaluates the federal Indian country criminal justice regime, not against norms of Indian law and policy, but against those of criminal law and policy. Specifically, this Article evaluates the federal constitutional norms that lie at the heart of American criminal justice and that are designed to ensure the legitimacy of federal criminal trials. Toward that end, Part I presents a critical description of key facets of the federal Indian country criminal justice system. Part II begins the critical evaluation by evaluating a key institutional player in the federal system, the federal prosecutor. It highlights the handicaps faced by …

American Indian Tribes And Secession, Erik M. Jensen

Faculty Publications

Critics of American Indian law have often complained about federal interference in the internal affairs of American Indian nations. The author ponders how independent the critics really want American Indian nations to be and whether secession theory might help us think about the theory and practice of really independent American Indian nations.

In Re I.I. And I.I, Minor Youths, 2005-Ap-15 (Blkft. Tr. Ct. App., January 11, 2006), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court clarified a prior Appellate Court decision which returned two children to their parents on the Blackfeet Indian Reservation after their rights to Due Process were violated. The clarification made clear that the previous order did not vacate Blackfeet Family Services from continuing to supervise the children. They will continue to be supervised until either reunification, or the parental rights are terminated.

Monroe G. Mckay And American Indian Law: In Honor Of Judge Mckay’S Tenth Anniversary On The Federal Bench, Erik M. Jensen

Faculty Publications

This essay, written in honor of Judge Monroe G. McKay's tenth anniversary as a member of the United States Court of Appeals for the Tenth Circuit, considers the difficulty of justifying a separatist policy for the American Indian; examines the opinions authored by Judge McKay in American Indian law cases; and discusses the McKay opinions and the issue of separation.

Fallon Paiute Shoshone Tribes Settlement Act Of 2006, United States 109th Congress

Native American Water Rights Settlement Project

Federal Legislation: Fallon Paiute Shoshone Tribes Settlement Act of 2006 in Native American Technical Corrections Act of 2006 (PL 109-221, Sec. 104, 120 Stat. 336) This Act amends Sec. 102 of the Fallon Paiute Shoshone Indian Tribes Water Rights Settlement Act of 1990. The amendment concerns restructuring of management of Fallon Paiute Shoshone Tribes Settlement Fund. [Source: http://www.gpo.gov/fdsys/pkg/PLAW-109publ221/pdf/PLAW-109publ221.pdf]

Kansas V. Prairie Band Potawatomi Nation: Undermining Indian Sovereignty Through State Taxation, Jesse K. Martin

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Truth Or Consequences: Settling Water Disputes In The Face Of Uncertainty, Barbara Cosens

Articles

No abstract provided.

Federal Criminal Law And Tribal Self-Determination, Kevin Washburn

Faculty Scholarship

Under the rubric of "tribal self-determination," federal policymakers have shifted federal governmental power and control to tribal governments in nearly all areas of Indian policy. Normatively, this shift reflects an enlightened view about the role of Indian tribes in Indian policy. As a practical matter, it has also improved services to Indians on reservations by placing functions with tribal service providers who are more knowledgeable and more accountable than their federal counterparts. Despite broad adoption of self-determination as the dominant federal policy, felony criminal justice on Indian reservations has remained an exclusive federal function, and a highly ineffective enterprise, according …

2005 Indian Water Rights Settlement Conference Keynote Address, Barbara Cosens

Articles

In September 2005, Native American Rights Fund and Western States Water Council brought the Indian Water Rights Settlement Conference to Moscow, Idaho. Native American Rights Fund is the oldest and largest nonprofit dedicated to asserting and defending Native American interests nationwide, and the Western States Water Council is composed of representatives appointed by the governors of eighteen western states, including Idaho. The conference brings together panel members representing tribal, state, federal agency, congressional, local, and environmental interests to discuss, argue, and at times resolve current issues facing the many efforts to settle Indian water rights in the western United States. …

Some Legal Considerations Concerning Saami Rights In Saltwater, Elisabeth Einarsbøl

Aboriginal Policy Research Consortium International (APRCi)

The rights of the coastal Saami form the focus for this paper, which has been written by one of the advisers at the GÁLDU Resource Centre for the Rights of Indigenous Peoples. It explores the views on the rights of the coastal Saami that prevail today in the light of earlier perceptions and practices within sea fishing. The challenge is to attempt to say something about what this development entails in purely legal terms. The paper is one of the first to seek to provide an overview of what has been done with regard to surveys and research in the …

Tribal Self-Determination At The Crossroads, Kevin Washburn

Faculty Scholarship

The tribal self-determination initiative that began transforming federal Indian policy thirty years ago has reached a crossroads. Despite its transformative effects on tribal governments and the widespread belief that self-determination has been a successful federal approach to Indian affairs, no significant new self-determination program has been initiated at the congressional level in several years. This Article looks to the tribal self-determination initiative's past to gain insights about its future. It also briefly surveys existing tribal self-determination programs and concludes that far more work needs to be done to achieve tribal self-determination. Drawing on the author's broader work, it finds one …

Choosing Tribal Law: Why State Choice-Of-Law Principles Should Apply To Disputes With Tribal Contacts, Katherine J. Florey

American University Law Review

The Supreme Court has, in recent years, developed a detailed set of rules governing whether cases with tribal contacts should be heard in a state or tribal forum. It is therefore all the more remarkable that courts considering such cases have devoted almost no attention to the question of which law should apply once a forum has been chosen. Instead, courts have broadly assumed, without explicit consideration of the issue, that the forum in which the case is brought will apply its own law. Where state courts are concerned, two problems exist with this approach. First, the assumption that state …

An Environmental Pool For The Rio Grande, Kara Gillon

Publications

The Bureau of Reclamation and Corps of Engineers operate a series of dams, reservoirs, and levees along the Middle Rio Grande of New Mexico. The plight of the Rio Grande silvery minnow, an endangered species, and of the river itself demonstrates the need for a change from the emphasis on water development to sustainable river management. Conservation groups invoked the protections of the Endangered Species Act to catalyze this change. Recognizing that flexibility is necessary to meeting competing water needs, the groups also promoted the need for and several approaches to a sustainable and long-term approach to river management and …

Tribe V. Young Running Crane 05-Ap-06 (Blkft. Tr. Ct. App., Date Omitted), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court rejected a defendant’s appeal for violation of Due Process. The Defendant-Appellant failed to appear for oral argument after filing her own appeal, sans counsel. The Court notes that the Federal rules of Evidence require an objection, like the one appellant asserted, should have been made in the pre-trial stage or before trial, so as not to interrupt the pace and flow of the trial. Therefore, any argument regarding the relationships between witnesses, the judge, or the prosecutor should have been made before trial and cannot be used as an argument at …

Teaching Decolonization: Reacquisition Of Indian Lands Within And Without The Box - An Essay, G. William Rice

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

The Tribal Sovereign As Citizen: Protecting Indian Country Health And Welfare Through Federal Environmental Citizen Suits, James M. Grijalva

Michigan Journal of Race and Law

This Article suggests that federal environmental citizen suits can serve tribal sovereignty interests without presenting the legal risks tribes face when they attempt direct regulation of non-Indians. Section I briefly describes governmental regulatory roles tribes may play in the implementation of federal environmental law and policy. Section II overviews the conceptual and procedural framework for tribal claims as "citizens." Section III argues that in bringing environmental citizen suits, tribal governments exercise their inherent sovereign power and responsibility to protect the health and welfare of tribal citizens and the quality of the Indian country environment. Section IV concludes that, while suits …

Regional Projects Require Regional Planning: Human Rights Impacts Arising From Infrastructure Projects, Abby Rubinson

Michigan Journal of International Law

Regional projects require regional planning to avoid potentially disastrous environmental and human rights abuses. Focusing on the Rio Madeira project in Brazil as a case study in the impacts of infrastructure projects, this Note identifies the harm anticipated from these projects and highlights the need for verification of official predictions of such harm. It then proceeds to a legal analysis, addressing the applicable international law, Brazilian law, and regional legal frameworks and outlining the negative legal consequences arising from inadequate impact assessments. In light of these negative legal implications, the Note concludes by illustrating the need to proceed with planning …

Traditional Knowledge And The Fight For The Public Domain, 5 J. Marshall Rev. Intell. Prop. L. 317 (2006), Doris E. Long

UIC Review of Intellectual Property Law

What are the challenges facing the protection of traditional knowledge internationally? Can the protection of such rights, which have traditionally existed outside the boundaries of intellectual property, be achieved in the face of current challenges to protections epitomized by such emerging international movements as enhanced access to information and culture as a human right? This article examines some of the emerging issues in this hotly contested area and suggests that such movements, which are not adverse to intellectual property and traditional knowledge rights, should be used to craft a new method for addressing the issue of traditional knowledge protection internationally.

Liberalism And Republicanism: In Federal Indian Law, Bethany Berger

Faculty Articles and Papers

This essay shows the ways that, despite apparent contradictions, tribal claims fit within the liberal and republican strands of American democratic theory. Critics of tribal sovereignty and, I believe, the modern Supreme Court, are influenced by the seeming conflict between tribal interests and a liberal philosophical framework. I argue that properly understood, most tribal claims do fit within classical liberal theory, with its emphasis on equality and freedom. It is true that some tribal claims are distinctly those of groups or peoples, and so cannot be adequately captured by an individualist liberal framework. Drawing on the later work of John …

Can A State Tax The Fuel That Is Sold By Non-Indian Distributors To A Tribal Gas Station, Bethany Berger

Faculty Articles and Papers

No abstract provided.

Lions And Tigers And Bears, Oh My Or Redskins And Braves And Indians, Oh Why: Ruminations On Mcbride V. Utah State Tax Commission, Political Correctness And The Reasonable Person, André Douglas Pond Cummings

Law Faculty Scholarship

American Indian mascots have been used by High Schools, Colleges and Professional sports teams for decades. Such use of monikers and mascots that depict Native American images and stereotypes have come under intense criticism in the past decade. Despite the outcry, a few professional sports teams and major Division I institutions continue to stubbornly persist in using derogatory and offensive nicknames and stereotypes for their athletic competitors.

This article urges those stubborn institutions and professional sports teams to reconsider the use of names and monikers that demean and disparage. By reconsidering the reasonable person standard, examining recent caselaw, and discussing …