Indigenous, Indian, and Aboriginal Law Commons^™

Healing The Bishop: Consent And The Legal Erasure Of Colonial History, Jennifer Anne Hamilton

Studio for Law and Culture

During the summer of 1998, Hubert O’Connor, a white Catholic bishop and former Indian residential school principal in British Columbia, participated in what a local magazine termed “a centuries-old native ceremony”: an indigenous healing circle. In 1991, O’Connor was indicted on criminal charges for sexual offences he had allegedly committed some thirty years earlier against five indigenous women, all of whom were his former students and/or employees. While O’Connor acknowledged having sexual relations with these women, he denied having committed any illegal acts, maintaining that these relationships had been consensual. While the trial court originally convicted O’Connor of rape and …

Rural Housing And Code Enforcement: Navigating Between Values And Housing Types, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

This paper focuses on the relationship between rural housing and building codes. The paper covers the relationship between the existing urban based literature on housing conditions and the rural housing situation as well as a theoretical exploration of different ways of understanding value in housing. Finally, two rural case studies - the Navajo Nation and a small Colorado subdivision - illustrate the challenges of rural housing code enforcement and demonstrate how officials could benefit from the model.

The Metamorphosis Of Aboriginal Title, Brian Slattery

Articles & Book Chapters

Aboriginal title has undergone a significant transformation from the colonial era to the present day. In colonial times, aboriginal title was governed by Principles of Recognition based on ancient relations between the Crown and Indigenous American peoples. With the passage of time, this historical right has evolved into a generative right, governed by Principles of Reconciliation. As a generative right, aboriginal title exists in a dynamic but latent form, which is capable of partial articulation by the courts but whose full implementation requires agreement between the Indigenous party and the Crown. The courts have the power to recognize the core …

The Interests Of "Peoples" In The Cooperative Management Of Sacred Sites, Kristen A. Carpenter

Publications

This essay contends that there is a structural element of federal law and policy that sets up legal battles over American Indian sacred sites. The Supreme Court has held that whatever rights groups may have at sacred sites, the federal government's rights as owner and sovereign of the public lands ultimately prevails. Federal agencies can, if they choose, accommodate various interests on the public lands, but such decisions are left to fluctuating executive policy and the discretion of land managers. This approach reflects well-established doctrine in public lands law, but leaves various citizens and groups clamoring for the federal government …

The Current State Of International Law, S. James Anaya

Publications

No abstract provided.

"Peoples Distinct From Others": The Making Of Modern Indian Law, Charles Wilkinson

Publications

No abstract provided.

Defending The Polygon: The Emerging Human Right To Communal Property, Thomas T. Ankersen, Thomas K. Ruppert

Oklahoma Law Review

No abstract provided.

Kennewick Man And The Meaning Of Life, Steven Goldberg

Georgetown Law Faculty Publications and Other Works

When Native Americans and scientists clashed over ownership of the ancient remains of Kennewick Man it was, in part, a dispute between the needs of the traditional culture and those of the modern research establishment. But more was at stake. The Native Americans wanted to rebury the remains because their emotional relationship with Kennewick Man is tied to their view of their origins. But the scientists also had an emotional attachment to the scientific position. The question of who were the First Americans satisfies a yearning for scientific origin stories. The dispute here parallels the controversy over evolution. Creationists care …

Creating A Tribal Law Practice Clinic In Kansas: Carving The Peg To Fit The Hole, Aliza Organick

Faculty Scholarship

This article will focus on three main challenges in creating a tribal court practice clinic. The first part will address creating a tribal court focus within an existing clinic curriculum. The second part will address the process of designing a curriculum for the TCPC that includes incorporating the basic doctrinal foundations of federal Indian law, as well as the clinical skills necessary to practice in a tribal court setting. The third part will offer some concluding thoughts on my long-term plans and dreams for TCPC.

A Legal History Of Blood Quantum In Federal Indian Law To 1935, Paul Spruhan

Faculty Scholarship

The concept of blood quantum confronts anyone interested in American Indian identity in the United States. Both for federal recognition as an “Indian” and for membership in a tribal nation, a person generally must possess a threshold amount of Indian or tribal “blood,” expressed as one-half, one-quarter, or some other fractional amount. In this context, blood is a metaphor for ancestry, as the amount of Indian blood depends on the status of a person’s lineal ancestors. For instance, a person with one Indian parent and one non-Indian parent has one-half Indian blood, while a person with one Indian grandparent and …

Listening To All The Voices, Old And New: The Evolution Of Land Ownership In The Modern West, Charles Wilkinson

Publications

No abstract provided.

When The State Bar Exam Embraces Indian Law: Teaching Experiences And Observations, Gloria Valencia-Weber, Sherri Nicole Thomas

Faculty Scholarship

In 2002, New Mexico became the first state to place Indian law on the state bar exam. This decision made basic knowledge of Indian law part of the competency expected of all licensed attorneys. This result arose from the University of New Mexico School of Law's (UNM) significant role as the only law school in the state. In combination with the social and political history of the state these elements produced this historic result. This paper outlines the history of Indian law at UNM and discusses the formal process that placed Indian law on the state's bar exam. The discussion …

Native American Mascots' Last Stand - Legal Difficulties In Eliminating Public University Use Of Native American Mascots, Brian R. Moushegian

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Aquaculture Law And Policy In Canada And The Duty To Consult With Aboriginal Peoples, Richard Devlin, Ronalda Murphy

Articles, Book Chapters, & Popular Press

In November 2003, a Mi’kmaq elder from the community of Eskasoni launched a court action seeking to stop seismic testing in the waters off Cape Breton. He claimed that the government of Nova Scotia had failed to consult with his First Nation before issuing an approval to allow the testing by Corridor Resources, as part of its oil and gas exploration program.1 Aboriginal communities throughout Canada assert they must be consulted before governments or corporations make decisions that could impair the constitutional rights of Aboriginal peoples. Invocation of the duty to consult as an independent source of legal entitlement is …

The Potential Impact Of Aboriginal Title On Aquaculture Policy, Diana Ginn

Articles, Book Chapters, & Popular Press

This chapter discusses the potential impact of aboriginal property rights on the development of aquaculture policy by considering whether such rights could provide a basis for First Nation peoples to participate in aquaculture or to manage the participation of others in this industry. The purpose of the chapter is to describe the relevant law as it now stands, to identify issues that have not yet been decided and to consider how the courts might approach such issues in the future.

Indigenous Self-Determination And Research On Human Genetic Material: A Consideration Of The Relevance Of Debates On Patents And Informed Consent, And The Political Demands On Researchers, Constance Macintosh

Articles, Book Chapters, & Popular Press

Genetic research involving indigenous populations provokes many legal, ethical and cultural issues. Arguably, of these issues, two dominate the literature. The first is whether human genetic materials are or ought to be patentable, which is often argued against on the basis that such patents offend human dignity generally and are culturally offensive to many indigenous peoples. The second is whether researchers must obtain informed consent from representatives of indigenous groups as a whole before attempting to obtain consent for participation from individual members of that group. I argue that there is limited benefit in continuing to debate the patentability of …

Aboriginal Title And Oceans Policy In Canada, Diana Ginn

Articles, Book Chapters, & Popular Press

The Oceans Act of Canada sets out a broad framework for the unified management of Canada’s oceans based on an ecosystem approach. In particular, the Oceans Act calls on the Minister of Fisheries and Oceans to lead and facilitate the development of a national strategy to guide the management of Canada’s estuarine, coastal and marine ecosystems. The Oceans Act also reflects awareness that aboriginal rights may affect the development or implementation of policy surrounding oceans management. For example, s. 2(1) of the Act states that “. . . nothing in this Act shall be construed so as to abrogate or …

The Moiwana Village Case, Claudia Martin

Scholarly Articles in Law Reviews & Journals

Moiwana Village is the second case to be decided by the Inter-American Court on Human Rights against Suriname in which the victims are members of an ethnic community that descends from'Bush Negroes' or 'Maroons', namely escaped former slaves who established new autonomous communities in the eastern part of Suriname. In contrast to its prior judgment, in Moiwana the Court shows a striking evolution in its case law regarding the treatment of ethnic or group rights. This approach, which may be traced back to previous case law on the rights of indigenous communities, affords an enhanced protection to members of an …

Caution, Cooperative Agreements, And The Actual State Of Things: A Reply To Professor Fletcher, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

This short article argues that tribal governments considering entering into cooperative agreements with federal, state, or local governments ought to maintain a healthy skepticism regarding the non-tribal governments sitting across from them at the negotiating table and the appropriateness of entering into cooperative agreements.

The Virtues And Vices Of Sovereignty, Sarah Krakoff

Publications

American Indian tribal sovereignty is viewed very differently in the United States Supreme Court than it is in American Indian tribal nations. The United States Supreme Court, the progenitor of the legal doctrine of tribal sovereignty, appears skeptical of the doctrine's continuing viability. The Court is therefore veering away from any strong notion of retained inherent tribal sovereignty. American Indian tribes, the sources and perpetuators of de facto tribal sovereignty, are more committed than ever to enacting their sovereignty on the ground, as well as promoting and protecting its legal status in the courts and in Congress. There is an …

The "Actual State Of Things": Teaching About Law In Political And Historical Context, David E. Wilkins

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

Vine Deloria, Jr., the most prolific Native writer and one of the most gifted intellectuals in American history, left a deep imprint in many of the fields he so artfully plowed, including: education, religion, politics, cultural critic, history, and indigenous knowledge. His scholarship on specific subjects came in waves, with each wave building upon the previous one before reaching its remarkable crest.

Deloria's scholastic and pragmatic legacy in federal Indian law and policy and indigenous governance is one that has produced several major books and numerous articles, which, in the pantheon of Deloria's prodigious body of works, rank highly in …

Vine Deloria Jr. And Indigenous Americans, David E. Wilkins

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

Vine Deloria Jr., a Standing Rock Sioux citizen, widely considered the leading indigenous intellectual of the past century, walked on in November 2005. Deloria spent most of his adult life in an unrelenting, prodigious, and largely successful effort to provide those most grounded of Native individuals and their governments with the intellectual, theoretical, philosophical, and substantive arguments necessary to support their inherent personal and national sovereignty. Importantly, however, his voluminous work also sought to improve the nation-to-nation and intergovernmental relationships of and between First Nations, and between First Nations and non-Native governments at all levels. In fact, he was hailed …

Forging A Political, Educational, And Cultural Agenda For Indian Country: Common Sense Recommendations Gleaned From Deloria's Prose, David E. Wilkins

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

Fortunately for the human species, in its wide assortment of pigmentations, cultural experiences, and geographic locations, each generation of a given people produces a small number of truly spirited individuals. These are individuals who not only possess the ability to constructively critique and analyze what is both sound and problematic in their society—or for our purposes, a set of societies—but who also have the rarer gift of being able to propound suggestions, ideas, and prognostications on what might be done to improve the human condition, both individually and collectively.

In the breadth and depth of Vine Deloria Jr.'s copious works …

Indian As Race/Indian As Political Status: Implementation Of The Half-Blood Requirement Under The Indian Reorganization Act, 1934-1945, Paul Spruhan

Faculty Scholarship

This article discusses the implementation of the half-blood provision by the central office of the Bureau of Indian Affairs (BIA) under the administration of Commissioner of Indian Affairs John Collier. Through archival documents, the article reveals that the lawyers and administrators within the BIA were aware of the conceptual and practical problems of defining Indian status solely by blood quantum, and inconsistently applied social and cultural definitions alongside the biological one to implement the criterion. Therefore, despite the statute's clear biological definition, administrative application of the definition incorporated both biological and non-biological elements. Such incorporation complicates attempts to label the …

Toward A Pedagogy And Ethic Of Law/Lawyering For Indigenous Peoples, Christine Zuni Cruz

Faculty Scholarship

This article is prefaced with a reflection on Indigenous Peoples in the legal profession which leads into a discussion on the pedagogy and preparation of Indigneous students in law. It addresses the current pedagogy employed in training indigenous students in law and proposes a reframing of this preparation by including and employing an indigenous perspective and intellectual tradition of leadership. It considers the relationship of the Indian law academician with indigenous justice systems. The article addresses the influence on pedagogy that emerges from the Indigenous legal tradition, and the importance of incorporating these influences into the education and preparation of …

American Indians, Crime, And The Law, Kevin Washburn

Faculty Scholarship

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 …

Reserved Indian Water Rights In Riparian Jurisdictions: Water, Water Everywhere, Perhaps Some Drops For Us, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

In this Article, the author explores the question of whether nonfederally recognized eastern Indian tribes can claim reserved tribal rights to water under the Winters doctrine. The urgency of resolving this question in the tribes 'favor is underscored by the mounting problem of water scarcity in the East, where most such tribes live, and the problems these tribes have in claiming water under the prevailing systems for managing water in that part of the country, riparianism and regulated riparianism. Recognizing that, to date, these rights have been claimed almost exclusively by federally recognized western tribes who live on withdrawn federal …

Contextualizing The Losses Of Allotment Through Literature, Kristen A. Carpenter

Publications

In this article, the Author undertakes a law and literature approach to a major Indian law problem: understanding the losses of allotment. Allotment was a mid 19th - early 20th century federal legislative program to take large tracts of land owned by Indian tribes, allocate smaller parcels to individual Indians, and sell off the rest to non-Indians. The idea was that Indians would abandon traditional patterns of subsistence to become American-style farmers, and great tracts of land would be freed up for the advance of white settlement. A key component of the federal government's larger project of assimilating Indians into …

Old Ground And New Directions At Sacred Sites On The Western Landscape, Kristen A. Carpenter

Publications

The federal public lands contain places with both religious and secular value for American people. American Indians, in particular, hold certain natural features to be sacred, and visit them for ceremonies and worship. Simultaneously, non-Indians use the same places for economic, recreation, and many other purposes - and conflicts arise between these groups. In the past twenty years, a body of constitutional jurisprudence has developed to address questions of religious freedoms and public access rights on these lands that are owned and managed by the federal government. This article outlines the relevant First Amendment framework as well as recent statutes …

The First Half Century Of Western Water Reform: Have We Kept Faith With The Rivers Of The West?, Charles Wilkinson

Publications

No abstract provided.