Indigenous, Indian, and Aboriginal Law Commons^™

African Americans And Aboriginal Peoples: Similarities And Differences In Historical Experiences, David E. Wilkins

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

In August of 2003, Harvard University hosted a major conference, organized by the Civil Rights Project, titled Segregation and Integration in America's Present and Future. The conference was appropriately subtitled the Color Lines Conference, in reference to W.E.B. Du Bois's classic 1903 study The Souls of Black Folk. This sprawling conference brought together some of the more significant actors in the Civil Rights arena—including Gary Orfield, Julian Bond, Antonia Hernandez, Glenn Loury, William Julius Wilson, and Gerald Torres—to reflect on the dynamics of residential segregation, racial identity, institutional barriers to racial integration, inequalities in higher education, and, or …

Keynote Address: 2004 American Indian Studies Consortium Annual Conference, David E. Wilkins

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

This special issue of Wicazo Sa Review continues the theme of colonization/decolonization from the previous issue and contains transcriptions of two sessions of the 2004 American Indian Studies Consortium annual conference, entitled "Who Stole Indian Studies?" at Arizona State University. The articles add to our knowledge by contributing important discussions addressing such issues as empowerment, law, research ethics, Freedmen entitlements, reproductive rights, spiritual appropriation, and identity. The Consortium transcripts provide invaluable presentations by key native scholars about the past, present, and future of American Indian studies. Dr. David Wilkins provided the keynote address for the conference.

A Civic-Republican Vision Of "Domestic Dependent Nations" In The Twenty-First Century: Tribal Sovereignty Re-Envisioned, Reinvigorated, And Re-Empowered, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

As a cure for what ails democracy in a pluralistic modem society, such as ours, Michael Sandel recommends "dispersing" sovereignty to a "multiplicity of [civic republican] communities--some more, some less extensive than nations." He intimates that doing this "may entail according greater cultural and political autonomy to subnational communities," which, in turn might "ease the strife that arises when state sovereignty is an all-or-nothing affair, absolute and indivisible, the only meaningful form of self-determination." He sees in federalism not just a "theory of intergovernmental relations," but a "political vision" that "self-government works best when sovereignty is dispersed and citizenship formed …

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

Faculty Scholarship

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 of federally 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 …

Indigenous Peoples' Rights To Water Under International Norms, David H. Getches

Publications

In this article, Dean Getches examines the nature of international law as it relates to indigenous water rights and evaluates the kinds of claims that native peoples might assert when they are deprived of access to water. Around the world, indigenous peoples have experienced depletion or pollution of their traditional water sources caused by the uses made by dominant, non-native societies. As a result, native peoples' ability to perform water-dependent vocations like farming and fishing, and to perpetuate cultures and spiritual practices requiring water is limited. While a few countries recognize water rights of indigenous peoples in their domestic laws, …

Considering Individual Religious Freedoms Under Tribal Constitutional Law, Kristen A. Carpenter

Publications

As American Indian nations revitalize their legal systems, there is renewed interest in "tribal law," that is, the law of each of the Indian nations. Today, there is a particular focus on the subject of "individual rights" under tribal law. In tribal contexts, people are highly interested in the legal institutions and rules that govern their lives, especially as many tribal communities are experiencing a period of great political, social, and economic change. At the national level, the Supreme Court repeatedly expresses concern about whether individuals, especially non-Indians, will be treated fairly in tribal court. For scholars, individual rights under …

National Identity And Liberalism In International Law: Three Models, Justin Deystone

Publications

No abstract provided.

Book Review, S. James Anaya

Publications

No abstract provided.

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

American Indian Law Review

No abstract provided.

The Poltical Rights And Status Of Indeigenous Peoples In The 21st Century, Tama William Potaka

American Indian Law Review

No abstract provided.

In Cases Involving Sites Of Religious Significance, Plaintiffs Will Fall In The Gap Of Judicial Deference That Exists Between The Religion Clauses Of The First Amendment, Jeff Pinter

American Indian Law Review

No abstract provided.

Will States Continue To Provide Exclusivity In Tribal Gaming Compacts Or Will Tribes Bust On The Hand Of The State In Order To Expand Indian Gaming, Katie Eidson

American Indian Law Review

No abstract provided.

The State, Cherokee Nation, And Same-Sex Unions: In Re: Marriage License Of Mckinley & Reynolds, Christopher L. Kannady

American Indian Law Review

No abstract provided.

The Potential Passage Of Proposed Senate Bill 578 And Its Implication On Hicks V. Nevada And Twenty Years Of Supreme Court Jurisprudence, Richard L. Warren

American Indian Law Review

No abstract provided.

In Re M.J.J., J.P.L., & J.P.G: The "Qualified Expert Witness" Requirements Of The Indian Child Welfare Act, Paul David Kouri

American Indian Law Review

No abstract provided.

Giving Up The "I": How The National Museum Of The American Indian Appropriated Tribal Voices, Whitney Kerr

American Indian Law Review

No abstract provided.

Book Review: John W. W. Mann, Sacajawea's People: The Lemhi Shoshones And The Salmon River Country, University Of Nebraska Press, 2004, Jari D. Barnett

American Indian Law Review

No abstract provided.

Book Review: Lindsay G. Robertson, Conquest By Law: How The Discovery Of America Dispossessed Indigenous Peoples Of Their Lands, Oxford University Press, 2005, Willaim D. Wallace

American Indian Law Review

No abstract provided.

A Colonial Reading Of Recent Jurisprudence: Sparrow, Delgamuukw And Haida Nation, Gordon Christie

All Faculty Publications

Throughout Canada's long colonial relationship with Aboriginal nations, the Crown and the judiciary have worked in tandem. Historically, executive and legislative arms of government developed and implemented dispossessive and oppressive colonial policies and legal regimes, while the courts consciously developed conceptual frameworks meant to justify the taking of lands and the denial of Aboriginal sovereignty. This essay explores judicial attempts to justify the taking of lands and the denial of Aboriginal sovereignty, with the focus on how doctrinal law has conceived the transition from a world in which collective understandings of Aboriginal nations define the nature of their land interests …

Book Review: Peter H. Russell, Recognizing Aboriginal Title: The Mabo Case And Indigenous Resistance To English-Settler, W. Wesley Pue

All Faculty Publications

This provides a short review and commentary on Peter Russell's extraordinary new work on aboriginal peoples and settler-colony imperialism in Canada, the USA, Australian, and New Zealand.

Judicial Regrets And The Case Of The Cushman Dam, William H. Rodgers, Jr.

Articles

This essay is a criticism of the Ninth Circuit's en banc decision in Skokomish Indian Tribe v. United States [401 F.3d 979 (9th Cir. 2005]. It finds particular fault with the court's understanding of Indian treaty rights as "something given," and its outlandish conclusion that fishing was not a "primary purpose" of the Stevens treaties.

The article further criticizes the court's treatment of the "continuing nuisance" doctrine that is applied to afford a statute of limitations defense to enterprises that did lasting environmental damage by diverting the entire North Fork of the Skokomish River out of the watershed.

It concludes …

Protecting Indigenous Peoples, Paul J. Magnarella

Human Rights & Human Welfare

A review of:

The Origins of Indigenism: Human Rights and the Politics of Identity by Ronald Niezen. Berkeley: University of California Press, 2003. 272pp.

and

Indigenous Peoples and the State: The Struggle for Native Rights by Bradley Reed Howard. Dekalb, IL: Northern Illinois University Press, 2003. 252pp.

The Legal Fiction Of The Lake Matchimanitou Indian School, Matthew L.M. Fletcher

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Gila River Indian Community Water Rights Settlement Act Of 2004, United States 108th Congress

Native American Water Rights Settlement Project

Federal legislation: Gila River Indian Community Water Rights Settlement of 2004 as Title II found in the Arizona Water Settlement Act of 2004. Title I reallocates 28,200 acre-feet of CAP agricultural priority water; amends the Colorado River Basin Project Act re Lower Colorado River Basin Development Fund making $53M available for the Gila River Indian Community Water OM&R Trust Fund. Title II ratifies the Gila River Indian Community Water Rights Settlement of Feb. 4, 2003. The Secretary will comply with National Environmental Policy Act in executing the Agreement and Reclamation is the lead agency for compliance. The DOI Secretary shall …

Az Water Rights Settlement Act Of 2004, United States 108th Congress

Native American Water Rights Settlement Project

Federal Legislation: San Carlos Apache Tribe Water Rights Settlement (negotiations assistance) Act of 2004, Title IV of AZ Water Settlement of 2004, PL 108-451, 118 Stat. 3478, 3573 (Dec. 10, 2004) Parties: San Carlos Apache Tribe & US. Certain provisions in Titles I-III relate to water for the Tribe if settlement is reached and other matters. This Act provides funding for the San Carlos Apache Tribe Water Rights Settlement negotiations. For three years, the DOI Secretary shall submit an annual report to Congress describing the status of efforts to negotiate an agreement covering the Gila River water rights with Tribe. …

Az Water Rights Settlement Act Of 2004, United States 108th Congress

Native American Water Rights Settlement Project

Federal Legislation: Central AZ Project Settlement of 2004 - (Sec. 103) Parties: Tohono O'Odham Tribe & US Sets forth general permissible uses of the Central AZ Project (CAP), including for domestic, municipal, fish and wildlife, and industrial purposes. The DOI Secretary will reallocate 197,500 acre-feet of agricultural priority water made available pursuant to the AZ Water Settlement for use by AZ Indian tribes, of which: (1) 102,000 acre-feet shall be reallocated to the Gila River Indian Community; (2) 28,200 acre-feet shall be reallocated to the Tohono O'odham Nation (formerly the Papago Tribe); and (3) 67,300 acre-feet shall be reallocated to …

Az Water Rights Settlement Of 2004, United States 108th Congress

Native American Water Rights Settlement Project

Federal Legislation: White Mountain Apache Tribe Water Rights Settlement Assistance Provisions of 2004, Sec. 403 of AZ Water Settlement of 2004, PL 108-451, 118 Stat. 3478, 3573 (Dec. 10, 2004) Parties: San Carlos Apache Tribe & US. WHITE MOUNTAIN APACHE TRIBE.—The Section authorizes an appropriation to assist the White Mountain Apache Tribe in completing comprehensive water resources negotiations leading to a comprehensive water settlement for the Tribe, including soil and water technical analyses, legal, paralegal, and other related efforts, $150,000 for fiscal year 2006. [Source: http://www.gpo.gov/fdsys/pkg/PLAW-108publ451/pdf/PLAW-108publ451.pdf]

Nez Perce Tribe - Snake River Water Rights Act Of 2004, United States 108th Congress

Native American Water Rights Settlement Project

Federal Legislation: TITLE X--Snake River Water Rights Act of 2004, Consolidated Appropriations Act of 2005 PL 108-447, 118 Stat. 2809 (Dec. 8, 2004). Parties: Nez Perce Tribe, US, ID. The Agreement or "Mediator's Term Sheet" was entered in on April 20, 2004 and resolves the Nez Perce Tribe's water rights claimed in the Snake River Basin adjudication in Idaho.

Bear Child V. Siyeh Dev, Inc., 2004 Ca 15 (Blkft. Ct., December 3, 2004), Blackfeet Tribal Court

Court Decisions

In the Blackfeet Tribal Court, in a personal injury tort claim by Bear Child (“Plaintiff”) against Siyeh Development inc, the Blackfeet Tribe, First American Insurance Group, and five separate John Does (collectively “Defendants”), the Court denied a motion to dismiss the claim on the grounds of sovereign immunity. The claim arose from a fall in one of the Tribe’s Bingo halls/casinos.

Defendants cited Oklahoma v. Manufacturing Technologies, 532 U.S. 751, stating that “Indian tribes enjoy sovereign immunity from civil suits on contracts whether those contracts involve governmental or commercial activities... a tribe is subject to suit only where Congress has …

Bear Child V. Siyeh Development, Inc., 2004 Ca 15 (Blkft. Tr. Ct., Dec. 3, 2004), Blackfeet Tribal Court

Court Decisions

Bear Child, a member of the Blackfeet Tribe, was injured in a fall at one of the Tribe’s casino/bingo halls. Bear Child filed a personal injury suit against the Tribe, the Siyeh corporation which runs the casino/bingo hall, and First Americans Insurance, Siyeh’s insurer. The defendants moved to dismiss the case on the grounds of sovereign immunity. Siyeh argued that it is a department of the Tribe, entitling it to sovereign immunity. The Trial Court was unpersuaded by the defendants’ arguments for sovereign immunity. The Court held that the Tribe was acting in its corporate, not governmental capacity in relation …