Indigenous, Indian, and Aboriginal Law Commons^™

Surviving Racism And Sexual Assault: American Indian Women Left Unprotected, Talib Ellison

The Modern American

No abstract provided.

Aboriginal Title And Extinguishment Not So "Clear And Plain": A Comparison Of The Current Maori And Haida Experiences, Jacqueline F. Pruner

Washington International Law Journal

As the end of the United Nations General Assembly's International Decade of the World's Indigenous Peoples (1995-2004) approaches, indigenous peoples worldwide are proactively seeking an unprecedented reclamation of aboriginal rights lost since European colonization. One of the most all-encompassing rights that is asserted by indigenous peoples is the right of "indigenous title," a legal term of art that is both difficult to define and challenging to recognize. Notwithstanding domestic opposition from their respective provincial or national legislatures, both the Haida of Canada and the Maori of New Zealand are currently pursuing recognition of this indigenous right through their respective judiciaries. …

The Use Of Hiring Preferences By Alaska Native Corporations After Malabed V. North Slope Borough, James P. Mills

Seattle University Law Review

This article argues that Native corporations can provide employment preferences for Alaska Natives, so long as they are appropriately tailored to provide employment preferences to that corporation's shareholders or those closely related to the shareholders. Moreover, a hiring preference based on shareholder status is not a preference based on race and, as such, does not violate Alaska state law.24 But even if the Alaska Supreme Court found that these hiring preferences did violate the state constitution, given the federal government's unique relationship with Native corporations 25 and Congress's clear intent for Native corporations to favor Alaska Natives in their hiring …

Re-Establishing The Sisseton-Wahpeton Oyate's Reservation Boundaries: Building A Legal Rationale From Current International Law, Angelique Eaglewoman

Faculty Scholarship

This article examines one tribal nation as an example of the many land loss issues facing Tribes at present. Through the example of the Sisseton-Wahpeton Oyate history of treaties, agreements, land cessions, and finally a federal ruling of reservation disestablishment, the policies of the United States regarding Indian lands will be shown. To reestablish the territorial boundaries of the Sisseton-Wahpeton Oyate, federal recognition is necessary in the United States. International law principles from the United Nations, the International Labor Organization, and the Organization of American States may provide legal support for the re-recognition of the reservation boundaries.

The Chiricahua Apaches And The Assimilation Movement, 1865-1886: Historical Examination, John W. Ragsdale Jr

Faculty Works

Prior to the assimilation movement, the Chiricahua Apache Indians had built no stone temples, no multi-story apartments, no irrigation systems and no ceremonial highways. They traveled light and migrated with the game and the seasons. They lived in wickiups, quickly built and easily left behind. As Geronimo stated, "once [we] moved about like the wind."

This lightness of touch on the land spoke of ability, grace, and imagination. Their traditional way of life emphasized the people's intelligence, knowledge in the arts of fighting and survival, resourcefulness and striking fitness. Contemporary white observers described the Chiricahua with awe and admiration, transcendent …

Engaging The Spirit Of Racial Healing Within Critical Race Theory: An Exercise In Transformativethought, Rebecca Tsosie

Michigan Journal of Race and Law

This essay posits that Critical Race Theory (CRT) must operate at both the "idealist" and "materialist" levels. Although the emphasis may be in one direction or another at particular times, both domains are continually engaged. This essay links the debate between the "materialist" and "idealist" views to another central theme within CRT, which is the need for "justice" and how the law relates to justice. This essay focuses on the contemporary debate surrounding the status of Native Hawaiians to show how "race" is being used to construct the civil and political rights of Native Hawaiian people. CRT is a jurisprudence …

Appendix E: Comments By Number, 2005, Us Army Corps Of Engineers

US Government Documents Related to Indigenous Nations

This comments matrix, published in 2005, provides a summary of public comments made in 2005 regarding the proposed return of land to the Three Affiliated Tribes of the Fort Berthold Reservation. These comments were recorded from transcripts of three public meetings held in Bismarck, North Dakota (ND) on May 24; in Dickinson, ND on May 25; and in Williston, ND on May 26. The matrix also includes comments received outside these meetings via email and letter. The land return, based on the Mineral Restoration Act of 1984 (Public Law 98-602), proposed to return a portion of the land taken for …

Tribal Employment Separation: Tribal Law Enigma, Tribal Governance Paradox, And Tribal Court Conundrum, Matthew L.M. Fletcher

University of Michigan Journal of Law Reform

Each year, more and more people--Indians and non-Indians--are employed by Indian Tribes and Tribally-chartered organizations. However, as Tribal employment grows, so do the problems associated with personnel disputes. Tribal employment is different than traditional corporate or even government employment because Tribal communities are incredibly close-knit and Tribal governments are very accountable to their constituents. Because of this dynamic, employment separations can create excessive difficulty within a Tribe. Many Tribal courts apply the principles of the Supreme Court's decision in Loudermill, granting terminated employees the right to both an administrative and judicial hearing. However, these processes can often be incredibly painful …

Phase I Archaeological Intensive Survey Of Hassanamesitt Woods Property, Grafton, Massachusetts, Jack Gary, Stephen Mrozowski, David B. Landon

Andrew Fiske Memorial Center for Archaeological Research Publications

The Center for Cultural and Environmental History conducted a Phase I archaeological intensive survey of the Hassanamesitt Woods property in Grafton, Massachusetts from October 2004 through January 2005. Documentary evidence has suggested that the property may contain remains of the church for the Praying Indian village of Hassanamisco, established by John Eliot in 1660. Historical deed research has also placed several Nipmuc families on the property in the early 18th century, suggesting the area was resettled by the original inhabitants of Hassanimisco in the aftermath of King Philip's War. Throughout the course of the 18th and 19th centuries the property …

Is Hindsight 20-20? Reconsidering The Importance Of Pre-Constitutional Documents, Kirsten Matoy Carlson

Law Faculty Research Publications

Many constitutional orders, including the United States, have yet to determine the legal and political status of pre-constitutional documents written prior to the enactment of a final constitution. This article argues that pre constitutional documents should be critically analyzed by their respective constitutional communities. It maintains that pre-constitutional documents play a key role in constitutional orders by identifying conflicts that remain over time and contends that critical analysis of these documents facilitates deeper understandings of constitutional politics. It demonstrates how pre constitutional documents can be used as diagnostic tools for identifying and better understanding persistent constitutional tensions through a case …

Tribes And Tribulations: Beyond Sovereign Immunity And Toward Reparation And Reconciliation For The Estelusti, Carla D. Pratt

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Constitutional Shadows: The Missing Narrative In Indian Law, Frank Pommersheim

Faculty Publications

No abstract provided.

Visionary Thinker And Wordsmith Par Excellence, David E. Wilkins

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

I was part of a small cohort of Native students, thrilled at the possibility of studying with a man we affectionately, and with some trepidation, referred to as "the Godfather" of Indian politics, policy and law. We called ourselves "Vine's Disciples," not because he was a religious figure, but because we sensed that in having the privilege and opportunity studying with the individual we all considered the most gifted of our time, that we would receive profound lessons in what was required of us as we sought to become active and informed defenders of indigenous nationhood.

What an influence he …

Tribal Kulturkampf: The Role Of Race Ideology In Constructing Native American Identity, Carla Pratt

Faculty Articles

No abstract provided.

Four Questions On Critical Race Praxis: Lessons From Two Young Lives In Indian Country, Christine Zuni Cruz

Faculty Scholarship

The Critical Race Lawyering Symposium in New York City brings me from Albuquerque, New Mexico. As I travel the day before the symposium, I reflect on the amount of time it will take. I leave Albuquerque at 8:23 a.m. and I am scheduled to arrive in New York City at 4:05 p.m., via Chicago. Given the two-hour time difference between the East Coast and the Rocky Mountain regions, I begin my day boarding the plane as the sun is rising in the morning sky and end it at my destination where the sun is setting. Even in this day and …

Recovering Homelands, Governance, And Lifeways: A Book Review Of Blood Struggle: The Rise Of Modern Indian Nations, Kristen A. Carpenter

Publications

No abstract provided.

A Property Rights Approach To Sacred Sites Cases: Asserting A Place For Indians As Nonowners, Kristen A. Carpenter

Publications

Although the Free Exercise Clause prohibits governmental interference with religion, American Indians have been unsuccessful in challenging government actions that harm tribal sacred sites located on federal public lands. The First Amendment dimensions of these cases have been well studied by scholars, but this Article contends that it is also important to analyze them through a property law lens. Indeed, the Supreme Court has treated the federal government's ownership of public lands as a basis for denying Indian religious freedoms claims. This Article contends that such holdings rely on an "ownership model" of property law wherein the rights of the …

Indigenous Peoples’ Participatory Rights In Relation To Decisions About Natural Resource Extraction: The More Fundamental Issue Of What Rights Indigenous Peoples Have In Lands And Resources, James Anaya

Publications

No abstract provided.

Divergent Discourses About International Law, Indigenous Peoples, And Rights Over Lands And Natural Resources: Toward A Realist Trend, S. James Anaya

Publications

In this article renowned scholar S. James Anaya analyzes the divergent assessments of international law's treatment of indigenous peoples' demands to lands and natural resources. The author explores several strains of arguments that have been advanced within this debate, including state-centered arguments and human rights-based arguments. The author also examines the shortcomings of recurring interpretive approaches to international law that consider indigenous peoples' rights to land and resources. From this analysis the author identifies a more promising approach within the human rights framework--which he describes as a realist approach--that focuses on the confluence of values, power, and change. The author …

Indian Mascot World Series Tied 1 - 1: Who Will Prevail As Champion?, Stacie L. Nicholson

American Indian Law Review

No abstract provided.

Reparations As A Basis For The Makah's Right To Whale, Russell C. D'Costa

Animal Law Review

The grant of whaling rights to the Makah Native-American tribe may be interpreted as a form of reparations owed to the tribe from the United States government. History details the many wrongs inflicted on the Makah by the government, and these wrongs therefore serve as the basis for reparations. Considered first is a brief review of recent attempts by the federal government to compensate Native Americans for past wrongs. Next, an examination of the history and culture of the Makah tribe provides a greater understanding of the significance of whaling to the Makah. The essay then expounds on why permitting …

Tribes And Tribulations: Beyond Sovereign Immunity And Toward Reparation And Reconciliation For The Estelusti, Carla Pratt

Faculty Articles

This Article advocates a form of micro-reparations for a limited class of African Americans--the Estelusti (black Indians). The Article seeks reparations in the form of racial healing not only from the United States Government, but also from one particular participant in African American slavery--Native American Indian Tribes. The Article begins by defining the theory of micro-reparations and providing the historical foundation which serves as the factual predicate to the claim that black Indians have for reparation. This part of the article establishes how the rule of hypo-descent or the "one drop rule" has served historically and presently to exclude black …

Indigenous Self-Determination In Latin America, Ángel Oquendo

Faculty Articles and Papers

No abstract provided.

Justice And The Outsider: Jurisdiction Over Nonmembers In Tribal Legal Systems, Bethany Berger

Faculty Articles and Papers

Over the last quarter century, the Court has progressively limited tribal jurisdiction over both non-Indians and Indians who are not members of the tribe. The Article examines these decisions to show that they owe less to established Indian law doctrine than to two assumptions: first, that tribal courts will be unfair to outsiders and second, that jurisdiction over outsiders has little to do with tribal self-government. It then tests these assumptions against an examination of all cases decided by the Navajo Nation appellate courts over the last thirty-five years and the history and contemporary situation of tribal legal systems. This …

Eagle Feathers And Equality: Lessons On Religious Exceptions From The Native American Experience, Kevin J. Worthen

University of Colorado Law Review

The legality and propriety of exempting religiously motivated conduct from otherwise applicable legal norms is the subject of ongoing scholarly, judicial, and legislative debate. The issue is particularly thorny when it arises in a legal system deeply committed to the concept of equality. The Eagle Protection Act, which exempts Native Americans religious practitioners who are members offederally recognized tribes from its general prohibition on the taking and use of bald and golden eagle feathers, provides an interesting context in which to examine that debate. Not only does the Act exempt religiously motivated conduct from the otherwise applicable norms, it prefers …

City Of Sherrill V. Oneida Indian Nation Of New York: A Regretful Postscript To The Taxation Chapter In Cohen's Handbook Of Federal Indian Law, Sarah Krakoff

Publications

No abstract provided.

Inter-American System, Diego Rodriguez-Pinzon

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Trade-Off Between Self-Determination And The Trust Doctrine: Tribal Government And The Possibility Of Failure, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

This paper argues that tribes and scholars need to come to grips with the trade-off between trust and self-determination, and that failure to do so-by for example expressing a yearning that the trust doctrine was stronger-will lead to poor choices by tribes. Choices thus need to be based on an understanding of this trade-off and tribes must be aware that exercising self-determination inevitably will lead to a weakening of the trust doctrine over the areas which tribe's assume authority. This point is illustrated using a close analysis of the arguments used by the parties and the Supreme Court's treatment of …

The Nature Of Representation: The Cherokee Right To A Congressional Delegate, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

This paper explores the history and present day implications of the Cherokee Nation's 1835 treaty-based right to a Congressional Delegate.

This Land Is My Land, This Land Is Your Land: Markets And Institutions For Economic Development On Native American Reservations, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

This paper presents the current land regime and nature of economic development found on most Native American reservations, drawing predominantly from the Navajo Nation. It then considers the situation according to (1) neo-classical economics and (2) New Institutional Economics (NIE). The paper begins with the paired assumptions that economic growth can and should reach reservations and that the U.S. and tribal governments can improve upon past performance and institutional arrangements. Policy solutions to reservation commercial and light industrial underdevelopment, corresponding to each economic perspective in turn, are then discussed. The paper broadens the range of policy options available to tribes …