Indigenous, Indian, and Aboriginal Law Commons^™

Lara, Lawrence, Supreme Court Litigation, And Lessons From Social Movements, Kevin Washburn

Faculty Scholarship

United States v. Lara was hailed as a victory for Indian tribes because it upheld tribal criminal jurisdiction over non-member Indians. Lawrence v. Texas was hailed as a victory for the gay rights movement because it upheld the due process right of gays to be protected from criminal prosecutions for consensual sexual acts done in private within their own homes. Despite dramatically different contexts, the two cases share a common thread: both are cases in which interested groups achieved important successes by marshalling broad support for their arguments at the briefing stage which helped pave the way for Supreme Court …

A Commentary To Montserrat Guibernau Nations Without States: Political Communities In The Global Age, Beatrice Tice, Jason Nelson

Michigan Journal of International Law

Commentary on Professor Montserrat Guibernau's Nations Without States: Political Communities in the Global Age

A Narrative Of Sovereignty: Illluminating The Paradox Of The Domestic Dependent Nation, Sarah Krakoff

Publications

For the last thirty years the Supreme Court has been adjusting the boundaries of American Indian tribal sovereignty. Some cases affirm tribal inherent powers, but recently the trend has been to limit those powers. Yet neither the Court nor the Congress, which can reverse Supreme Court decisions on questions of tribal sovereignty, has been informed about how these alterations to tribal powers actually affect American Indian tribes on the ground. This article provides that information by examining the interplay between Supreme Court decisions and the Navajo Nation's exercise of its sovereign governmental powers from 1970-2003. In the categories of general …

Reconciling The Paradox Of Tribal Sovereignty: Three Frameworks For Developing Indian Gaming Law And Policy, Steven Andrew Light, Kathryn R.L. Rand

Nevada Law Journal

No abstract provided.

United States V. Lara As A Story Of Native Agency, Bethany Berger

Faculty Articles and Papers

In this contribution to the University of Tulsa's symposium on United States v. Lara (2004), I tell the history of Lara as a story of unified agency by Indian peoples and suggest that it is part of a broader transformation in the relationship of Indian people to Indian law. In United States v. Lara, the Supreme Court affirmed congressional power under the constitution to recognize inherent criminal jurisdiction over non-member Indians, although the Supreme Court had declared there was no such jurisdiction as a matter of federal common law. That the jurisdiction was inherent is significant, because it means that …

Tribal Sovereignty Over Water Quality, Jessica Owley

Articles

No abstract provided.

A Local Development Agreement On Access To Sacred Lands, Robert Retherford

University of Colorado Law Review

No abstract provided.

A New Corps Of Discovery For Missouri River Management, Sandra B. Zellmer

Faculty Law Review Articles

No abstract provided.

Indigenous Voices And American Politics, David E. Wilkins

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

President [Bush], in a convoluted response to a question on the meaning of tribal sovereignty (essentially the inherent right of indigenous nations to self-governance) posed by a minority journalist on August 6, told the 7,500 assembled journalists that "tribal sovereignty means that it's sovereign. You're a—you've been given sovereignty and you're viewed as a sovereign entity. And therefore the relationship between the federal government and tribes is one between sovereign entities."

Nevertheless, these two statements by the leading presidential candidates are big deals for Indian nations. They provide a measure of overt national political recognition for several of the most …

Justice Thomas And Federal Indian Law: Hitting His Stride?, David E. Wilkins

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

It was Justice [Clarence Thomas], the lone African American, whose voting record on Indian cases is more anti-Indian than even Rehnquist or Scalia, who in his concurring opinion, made several critical points that were most telling. Thomas will never be mistaken for Thurgood Marshall, who wrote several affirmative Indian law rulings, and his intention in crafting his opinion in this case was almost certainly not meant to be transparently supportive of tribal sovereignty. Yet he identified several enigmas in law and policy that, if acted upon by tribal, state and federal policymakers, might lead to a clearer status for indigenous …

Petitioner's Brief - Reargument Of Oliphant V. Suquamish Indian Tribe, John P. Lavelle

Faculty Scholarship

Does the Suquamish Indian Tribe possess inherent sovereign power to exercise criminal jurisdiction over non-Indians alleged to have committed misdemeanor crimes within the boundaries of the tribe's own reservation in violation of the Suquamish Law and Order Code?

Racial Equality: Old And New Strains And American Indians, Gloria Valencia-Weber

Faculty Scholarship

First, I will set the colonial context for equality that was anchored in a narrow white male model as the principal civic actor. Second, the discussion proceeds to the political status of American Indians, the basis for the nation-to-nation relations that secured in treaties the lands and resources that benefited non-Indians. Third, this Article explores the cultural difference between indigenous and constitutional visions of individual rights and community. Fourth, is a description of the efforts to remake Indians into a race and assimilate their governments into federalism. Fifth, this Article discusses the Santa Clara Pueblo v. Martinez case, which demonstrates …

Tribal Courts And Federal Sentencing, Kevin Washburn

Faculty Scholarship

In light of the overwhelming acceptance of the norm of tribal self-governance in federal Indian policy, the Commission's decision not to credit the legitimate work of tribal courts in adjudicating misdemeanor sentences is surprising. This article critically evaluates this peculiar and unexplained policy. Part I describes the current federal policy toward tribal governments with particular emphasis on tribal courts and explains the role of tribal courts in the unique federal criminal justice regime that governs Indian country. Part II describes the Federal Sentencing Guidelines with particular attention to the provisions on criminal history. Part II also evaluates the Commission's current …

The Mechanics Of Indian Gaming Management Contract Approval, Kevin Washburn

Faculty Scholarship

The National Indian Gaming Commission's management contract review process is complicated, time-consuming and governed by detailed regulations. This article explains how the process actually works within the Commission and addresses some of the common issues that arise.

Petitioner's Brief, Richard B. Collins

Publications

No abstract provided.

International Human Rights And Indigenous Peoples: The Move Toward The Multicultural State, S. James Anaya

Publications

No abstract provided.

Colonizing The Last Frontier, David J. Bloch

American Indian Law Review

In Aboriginal Rights and Judicial Wrongs: The Colonization of the Last Frontier, I examine a recent sea-change in federal Indian law that has escaped the notice of scholars. In the light of the divestiture of tribal sovereignty characterizing recent Supreme Court decisions, my article interrogates a contemporary case that rejects the property principle underlying all of federal Indian law itself in favor of a conception of aboriginal title never before countenanced in the United States and long discredited elsewhere. My analysis argues that this new conception traduces 175 years of American precedent and violates international law. I also contend that …

The Voting Rights Act In Indian Country: South Dakota, A Case Study, Laughlin Mcdonald

American Indian Law Review

No abstract provided.

Brown And Tee-Hit-Ton, Earl M. Maltz

American Indian Law Review

No abstract provided.

Take-Or-Pay Royalties, The Trust Doctrine, And The Shoshone Case, Christopher S. Kulander

American Indian Law Review

No abstract provided.

Oklahoma's State/Tribal Water Compact: Three Cheers For Compromise, Jennifer E. Pelphrey

American Indian Law Review

No abstract provided.

Glacier National Park And The Blackfoot Nation's Reserved Rights: Does A Valid Tribal Co-Management Authority Exist?, Curt Sholar

American Indian Law Review

No abstract provided.

Microenterprise Through Microfinance And Microlending: The Missing Piece In The Overall Tribal Economic Development Puzzle, R. H. Tipton Iii

American Indian Law Review

No abstract provided.

Applying Twenty-Five Years Of Experience: The Iowa Indian Child Welfare Act, Kirk Albertson

American Indian Law Review

No abstract provided.

Winner, Best Appellate Brief In The 2004 Native American Law Student Association Moot Court Competition, Kevin Mcculloch, April Winecke

American Indian Law Review

No abstract provided.

Intertribal Conflicts And Customary Law Regimes In North Africa: A Comparison Of Haratin And Ait 'Atta Indigenous Legal Systems, Anna Natividad Martinez

Tribal Law Journal

The Haratin people of North Africa are subjects in crisis; they are people whose origins are debated and whose social status is scorned. As an indigenous population in the midst of regional turmoil, they have been subject to removal, forced labor and economic deprivation. Their exploitation by both French colonial forces and other indigenous populations (namely Arabs and Berbers) has displaced the Haratin way of life and has subsumed their legal culture.

Diné Bi Beenahaz'Áanii: Codifying Indigenous Consuetudinary Law In The 21st Century, Kenneth Bobroff

Tribal Law Journal

The fundamental laws of the Diné, "the People" in the Navajo language, were placed by the Holy People long before Spaniards arrived in the New World. Since Coronado first traveled to Navajo Country almost five centuries ago, Diné have resisted European assaults on Navajo Law. On November 1, 2002, the Navajo Nation Council acknowledged the survival of the fundamental laws of the Diné, recognizing four specific constituent elements — traditional law, customary law, natural law, and common law – and explaining the principles of each.

Cultural Eclipse: The Effect On The Aboriginal Peoples In Manitoba, Kwesi Baffoe

Tribal Law Journal

Cultural eclipse is a phrase that I coined to describe the inter-relationship between the Aboriginal and European cultures as seen by an observer in space. It depicts the scene of two cultures initially rotating separately in time through the Universe. The European culture slowly drifts towards the Aboriginal culture and partially covers it without consuming it. This paper explores one of the ways indigenous culture is damaged during this "union".

Profile Of The Sayisi Dene Nation Of Tadoule Lake In Northern Manitoba, Kwesi Baffoe

Tribal Law Journal

The cultural groups among the Aboriginal peoples of Northern Canada correspond to climatic latitudinal divides. Above the tree line, where the boreal forest meets the tundra, are the Inuit whose territory stretches far into the arctic. South of the tree line are the Dene, and below them are the Cree nations of the prairies. The goal of this paper is to concentrate on the nature of the particular culture of the Dene People.

A Restatement Of The Common Law Of The Grand Traverse Band Of Ottawa And Chippewa Indians, Matthew L.M. Fletcher, Zeke Fletcher

Tribal Law Journal

This this article sets forth the case law propounded by the Grand Traverse Band Tribal Court. The Grand Traverse Band, with whom the United States concluded two treaties in the 19th Century, only to be denied sovereign status wrongly for over one hundred years, was "re-recognized" by the United States in 1980. The 1988 Grand Traverse Band Constitution established a politically independent Tribal Judiciary that has ruled on a wide spectrum of issues ranging from administrative and constitutional law to fishing and gaming, and from sovereign immunity and tribal economic development to tribal membership. The Restatement distills the principles of …