Indigenous, Indian, and Aboriginal Law Commons^™

Criminalizing Ecocide: An Opportunity To Embed The Inseparability Of Humans From Nature Into The Law, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

Amid widespread acknowledgment that we live on a planet in peril, the term “ecocide” packs a powerful rhetorical punch. Extant regulatory approaches to environmental protection feel insufficient in the face of the triple threat of climate change, pollution, and biodiversity loss. International criminal prosecution for ecocide, by contrast, promises to meet the moment, and a recent proposal to introduce ecocide into the canon of core international crimes is gaining traction. Assuming the push to criminalize ecocide continues to gain momentum, this Article argues that the primary (and perhaps, sole) benefit that international criminal law can offer in this context is …

Institutions And Economic Development, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: Though forty years have passed since the American Indian Law Review published Economic Development in Indian Country: What Are the Questions? by Professor Frank Pommersheim, many of the same challenges and questions about economic development remain. This brief Essay looks back at Pommersheim’s work, surveys the state of scholarship on economic development today, and offers a few ideas about the future of such work. To this day, economic development remains a backwater among law professors compared to sexier topics like criminal jurisdiction, civil authority over nonIndians, and whatever is the most recent opinion from the U.S. Supreme Court. But …

Front Pages

American Indian Law Review

No abstract provided.

Institutions And Economic Development, Ezra Rosser

American Indian Law Review

No abstract provided.

Tribal Authority To Issue Search Warrants To Non-Tribal Entities Or On Non-Indian Land Within Reservation Boundaries, Ivy K. Chase

American Indian Law Review

No abstract provided.

Into The Jurisdictionverse: How Tangled Jurisdictional Lines Around Indian Country Thwart Attempts To End The Crisis Of Missing And Murdered Indigenous Women, Evan Gamble

American Indian Law Review

No abstract provided.

The Native Fight For Hunting Rights: The Crow Tribe And Herrera V. Wyoming, Jacob Lewis

American Indian Law Review

No abstract provided.

The “Arm” That Saves You Might Also Strangle You: The Impact Of Sovereign Immunity On Economic Arms Of Tribes And How It Could Affect Others’ Willingness To Contract With Them, Josh Pumphrey

American Indian Law Review

No abstract provided.

The Need For Law In Federal Indian Law: A Response To Maggie Blackhawk In Light Of The Supreme Court’S Troubling Term For Tribal Sovereignty, Nicholas B. Mauer

American Indian Law Review

No abstract provided.

Ineligible Partners: Tribal Nations And Cooperative Federalism In The Historical Development Of National Forest Law And Policy, James H. Baker

Graduate Student Theses, Dissertations, & Professional Papers

Lands within the National Forest System (NFS), like all federal public lands, are rooted in Aboriginal Title and were once exclusively inhabited by Indigenous peoples and communities. Through the process of treaty-making, the federal government amassed millions of acres of ceded Tribal lands, many of which are now managed by federal public land agencies, including 194 million acres managed by the U.S. Forest Service (USFS). Several Tribes reserved various use and property rights on these lands that are protected by the U.S. Constitution’s Treaty and Supremacy Clauses. The federal government also has an overarching trust obligation to Tribes – a …

Against Judicial Generalists, Matthew L.R. Fletcher

Other Publications

There is something irritatingly wrong with Indian law practice at the Supreme Court.

Oral argument at the Supreme Court is a bitterly unpleasant affair for Indigenous people and tribal advocates for a lengthy variety of reasons. It is canonical that tribal advocates must attempt to avoid Supreme Court review; the strategic thinking is that the Court is the last place an Indian tribe would ever want to be. No Indigenous person has argued a case before the Supreme Court since 2001, approaching a quarter century. Only a tiny handful of Indigenous people have ever clerked for a Supreme Court justice. …

The Three Lives Of Mamengwaa: Toward An Indigenous Canon Of Construction, Matthew L.M. Fletcher

Articles

For too long, tribal judiciaries have been an afterthought in the story of tribal selfdetermination. Until the last half-century, many tribal nations relied on federally administered courts or had no court systems at all. As tribal nations continue to develop their law-enforcement and police powers, tribal justice systems now play a critical role in tribal self-determination. But because tribal codes and constitutions tend to borrow extensively from federal and state law, tribal judges find themselves forced to apply and enforce laws that are poor cultural fits for Indian communities—an unfortunate reality that hampers tribal judges’ ability to regulate and improve …

Ai And Tribal Court Practice, Matthew L.M. Fletcher

Articles

American Indian tribal court practice resides at the intersection of two difficult legal problems. First, because tribal justice systems are usually very young and dynamic, awareness and analysis of tribal law is underdeveloped. Second, because tribal nations are not governed by state or federal law, tribal law is culturally unique. Tribal court practitioners often find that even routine legal matters will involve questions of first impression in the jurisdiction. All of this is to say tribal court jurisprudence is intensely jurisgenerative.

Because tribal law is often unsettled or indeterminate, the costs of discovering and applying this law are occasionally high. …

The Sovereignty Problem In Federal Indian Law, Matthew L.M. Fletcher

Articles

There is a sovereignty problem in federal Indian law-namely, that the federal government's sovereign defenses prevent tribal nations and individual Indian people from realizing justice in the courts. Often, compelling tribal and Indian claims go nowhere as the judiciary defers to the interests of the United States, even where Congress has expressly stated its support for tribal interests. Conversely, tribal judiciaries allow claims to proceed to the merits, invoking customary and traditional law to hold tribal governments accountable.

Sovereignty theory helps to explain why justice can be done in one court system but not another. But federal, state, and tribal …

Nanaboozhoo And Derrick Bell Go For A Walk, Matthew L.M. Fletcher

Articles

When the Anishinaabeg were new to Anishinaabewaki, they knew little about how to fend for themselves. The animals and plants took pity on them and taught the Anishinaabeg. One winter, as the food stores of the Anishinaabeg were running out, an ininaatig (maple tree) saw an Anishinaabe innini (man) weakly scavenge for food. The ininaatig decided to offer part of itself to the Anishinaabeg. The ininaatig told the innini to cut off a branch. Ininaatigwabo, delicious, thick maple syrup, oozed from the stump. There was enough to feed the innini for many days. And there were many, many ininaatigoog …

Fletcher's Uncertainty Principle, Matthew L.M. Fletcher

Articles

am here to talk about the equal protection challenges facing Indian Country. I am going to give you my thesis right off the bat, which is that Haaland v. Brackeen decided the equal protection issue for us already, and we should behave as if it is decided.

I will explain what I mean by that. But first, let’s talk about what we will call the Mancari rule. The Mancari rule is fundamentally what Indian law is about, and it goes something like this—I am going to more or less paraphrase the guiding principle of Morton v. Mancari from 1974. Any …

Tribal Recognition And Rhode Island: Towards A Recognition Process For The Ocean State, Declan Smith

Roger Williams University Law Review

No abstract provided.

The Historic Superfund Listing Of The Lukachukai Mountains Mining District, Nadine Padilla

Faculty Scholarship

President Biden’s 2021 Bipartisan Infrastructure Law included, among its many provisions, a historic investment of $3.5 billion to be allocated toward cleanups under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. This investment will help in addressing the problem of legacy pollution that impacts communities across the country. Approximately $1 billion will go towards clearing the backlog of 49 previously unfunded Superfund sites and will accelerate cleanup at over 85 current Superfund sites. Remaining funds will go towards launching cleanup efforts at 25 new Superfund sites. In a development that aligns with these broader cleanup …

Tribal Health Self-Determination: The Role Of Tribal Health Systems In Actualizing The Highest Attainable Standard Of Health For American Indians And Alaska Natives, Vanessa Ann Racehorse

Publications

In this Article, I explore the concept of Tribal self-determination in the context of systems that serve American Indian and Alaska Native communities. I investigate the vast health disparities that exist in Tribal communities, as well as the history and current legal framework for the provision of health care in Indian Country. Part of this discussion also provides information on the federal laws and policies that have fractured the traditional lifeways of Native communities and contributed to the disparate health outcomes that now exist. I also provide background on the fundamental federal laws and policies, particularly the Indian Self-Determination and …

Indigenous Peoples In International (Treaty) Diplomacy, Kristen A. Carpenter

Publications

International diplomacy has traditionally been considered the exclusive prerogative of states, who engage with each other on matters of peace, conflict, and trade with an eye to national interests and global wellbeing. This is one of a series of works considering "Indigenous Diplomacy"—a practice in which Indigenous Peoples engage with states, as well as other Indigenous Peoples, groups, and individuals in bilateral and multilateral settings, informed by Indigenous values, to advance rights, relationships, and remedies, as well as peace and security. This Article examines one category of Indigenous Diplomacy, namely the diplomatic processes surrounding modern and contemporary international treaties. With …

Indigenous Communities Suffer Multigenerational Trauma (“Susto”) From The Trafficking And Slavery Of Native Women And Children, Bill Piatt, Karagan Carson, Meghan Monahan, Makayla Perez

Faculty Articles

Trafficking and slavery have probably existed as long as humanity has existed. Despite efforts on many fronts, it will likely not be eradicated in our lifetimes. Bondage and abuse impose unthinkable suffering upon the immediate victims caught in the clutches of trafficking. Yet Native people and communities suffer unique, multi-generational, and almost permanent trauma, often referred to as susto. Our domestic law and policies have even resulted in the extinguishing of the formal legal Indian identity of Native victims and the destruction of their tribal connections. There is hope that the application of traditional prayer and ceremonies can provide some …

Yellowstone National Park's Record Of Decision On Bison Management, Lila Bennett

Public Land & Resources Law Review

Bison herds once roamed the American Plains by the millions and were a staple in the lives of Native Americans. By the late 1800’s, bison were nearly extinct due to the westward expansion of European settlers and over hunting. Now, there is a population of merely 30,000 wild bison in North America. Although bison no longer face threats of immediate extinction, wild herds face stark realities of disease, habitat loss, and genetic degradation.

Schutter V. State Board Of Land Commissioners, Gillian P. Ellison

Public Land & Resources Law Review

In Schutter v. State Board of Land Commissioners, the Montana Supreme Court addressed the State’s fiduciary obligation in the context of water rights appurtenant to school trust lands. Central to the Court’s holding was the State’s fiduciary duty in managing lands held in trust for the benefit of the State. By upholding the State’s claim to partial ownership of a water right originating on private land, the Schutter Court underscored the tension between private property rights and the State's trust fiduciary duties.

Flathead-Lolo-Bitterroot Citizen Task Force V. Montana, Sarah J. Leopard

Public Land & Resources Law Review

Flathead-Lolo-Bitterroot Citizen Task Force v. Montana evaluates the efficacy of the proposed 2024 gray wolf floating season in preventing harm to grizzly bears, a protected species in Montana. The Court of Appeals for the Ninth Circuit affirmed the implementation of a “serious questions” test for preliminary injunctions that is specific to Endangered Species Act cases. The Court agreed with the district court’s grant of a preliminary injunction that limited the 2024 floating season temporally, but modified the injunction in two respects, thereby narrowing its application. The Court’s holding signifies the continuation of a preliminary injunction standard that values protections for …

Corner Post V. Board Of Governors Of Federal Reserve System, Alexis Karbowicz

Public Land & Resources Law Review

Corner Post v. Board of Governors of the Federal Reserve System resolved a circuit split on when claims against the federal government “accrue” under 28 U.S.C.A. § 2401(a). The Supreme Court clarified whether plaintiffs must file challenges within six years of a regulation’s enactment or may wait until they are directly affected by an agency action, even if that occurs years later. Examining the case’s factual and procedural background provides insight into the relevant regulatory context. The Court’s analysis offers a detailed interpretation of statutory language and establishes principles of claim accrual, alongside the policy considerations of regulatory finality and …

The Biopiracy Of Traditional Knowledge In United States Patent Law, Hannah Green

Public Land & Resources Law Review

The United States intellectual property (“IP”) system is deeply intertwined with our country’s history and constitution. t is foundational in favoring young American inventors. George Washington signed the first patent act in 1790 in hopes of promoting the innovation and progress of science and useful arts. Yet, our patent system was also built around the Western tradition of individualism and competition, which failed to recognize the communal nature and traditional knowledge of tribal communities. This disparity allows the biopiracy of traditional knowledge to be lawful. This comment will explore the harmful toll that United States patent law has taken on …

A Home Away From Home For Indigenous Environmental Justice, Deborah Mcgregor

Articles & Book Chapters

No abstract provided.

Loosen Up: The Follies Of Strict Construction As Applied To A Statutory Tribal Sovereign Immunity Waiver, Joseph M. Raimondi

St. John's Law Review

(Excerpt)

On February 9, 2020, Brian Coughlin attempted suicide, leading to an eleven-day stint at the hospital. He was experiencing “overwhelming stress, anxiety and lack of hope for a better life.” He had recently filed for bankruptcy, which normally triggers a stay that prevents creditors from engaging in “any act to collect, assess, or recover a claim against the debtor . . . .” However, one of Coughlin’s creditors, associated with a Native American tribe —the Lac Du Flambeau Band of Lake Superior Chippewa Indians (“the Band”)—believed that it did not have to comply with the stay by virtue of …

Tribal Law: It’S Not That Scary, Adam Crepelle

Buffalo Law Review

Tribal law is often presented in a negative light. Indeed, the Supreme Court’s skepticism about tribal law has resulted in severe limitations on tribal jurisdiction. This Article challenges perceptions of tribal law by surveying tribal law. While tribal law does rely on tribal customs, tribal law is largely consistent with mainstream American law. Tribal laws are often modeled on state codes or the Restatement.

This Article contends tribal law mirrors western law for two primary reasons—efficiency and legitimacy. Regarding efficiency, borrowing a western law is easier than creating a law from scratch; plus, many laws are common across cultures. A …

Indigenous Justice Initiatives: A Summary Current To 2024, Kito Romero, Dara Heravi, Karen Drake, Yanika Mullings-Smith

Commissioned Reports, Studies and Public Policy Documents

This resource is intended to provide a guide to Indigenous justice initiatives across what is now known as Canada, based on publicly available information. The guide includes information on independent Indigenous courts that operate under the authority of an Indigenous people and separately from the Canadian legal system, Indigenous Persons Courts that operate within the Canadian legal system yet apply or uphold Indigenous laws, and restorative justice initiatives available to Indigenous peoples. This resource also includes academic literature on Indigenous laws, Indigenous justice models and practices, evaluations of existing Indigenous justice initiatives, and international comparative works. The focus is on …