Indigenous, Indian, and Aboriginal Law Commons^™

Current Issues In Native American Law, Gloria Valencia-Weber, Taiawagi Helton, Paul Frye, Samuel Winder, John Echohawk

Faculty Scholarship

Report of the Proceedings of the Judicial Conference of the United States Court of Appeals for the Tenth Circuit.

Transcribed conference panel session: Gloria Valencia-Weber focuses her segment on important language on Indian sovereignty in the Nevada v. Hicks case.

Tribe V. Tailfeathers, 02-Ap-11 (Blkft. Tr. Ct. App., Jan. 31, 2003), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals the Court admonished the tribal defender because when the Court reviewed the underlying case file, there were not any briefs filed by counsel for the defendant in support of his appeal to the Court to review. Lawyers owe a duty of care to their clients and this blatant disregard for the Court and his clients caused irreparable harm to his clients. Prosecutor is directed to summon the defendant and make arrangements for payment of the fine.

Horn V. Grant, Et Al., 01-Ca-157 (Blkft. Tr. Ct. App., Jan. 3, 2003), Blackfeet Appellate Court

Court Decisions

In the Blackfeet tribal Court of Appeals, the Court dismissed an appeal for ripeness. In this case, the Plaintiff filed an order of appeal regarding the trial court’s Order dismissing plaintiff’s cause of action against Defendant, Allstate Insurance Co. Plaintiff’s filed a complaint against multiple individuals and Allstate but not individual claims sought to hold any defendant liable for damages incident to the fact to the underlying claim. Rather, all claims were related to the activity of the insurance company after the incident. The trial court dismissed the claim against Allstate because one claim requested it to decide a federal …

Blame It On Rio: Biodiscovery, Native Title, And Traditional Knowledge, Matthew Rimmer

Aboriginal Policy Research Consortium International (APRCi)

This article examines the legal responses to protect traditional knowledge of biodiversity in the wake of the Rio Convention on Biological Diversity. It considers the relative merits of the inter- locking regimes of contract law, environmental law, intellectual property law, and native title law. Part 1 considers the natural drug discovery industry in Australia. In particular , it looks at the operations of Amrad, Astra Zeneca R & D, and the Australian Institute of Marine Science. This section examines the key features of the draft regulations proposed under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) - model contracts, …

The Supreme Court's Indian Law Decisions: Deviations From Constitutional Principles And The Crafting Of Judicial Smallpox Blankets, Gloria Valencia-Weber

Faculty Scholarship

The first section discusses sovereignty and the sources for foundational principles that pertain to the relationships among tribes, the states, and the federal government. The sources are the documented discourse and covenants of the constitutional evolution, the Articles of Confederation and Perpetual Union (Articles), and the Constitution of 1787 as they developed state jurisdiction related to Indian matters. Second, the paper discusses the colonial period and reality versus the fictions or myths of discovery and conquest. Third, the paper covers the conflict and unity in the pre-Revolutionary period. Fourth, the paper considers the Articles as the first U.S. model to …

Indigenous Peoples’ Rights To Land, Territories, And Natural Resources: A Technical Meeting Of The Oas Working Group, Osvaldo Kreimer

Human Rights Brief

No abstract provided.

Farmers, Fish, Tribal Power And Poker: Reallocating Water In The Truckee River Basin, Nevada And California, Barbara Cosens

Articles

No abstract provided.

Doing Business In Indian Country: Introduction To American Indian Law Concepts Affecting Taxation, Erik M. Jensen

Faculty Publications

This article describes some of the issues that will affect whether national, state, and tribal governments can tax investors who do business, or who invest in doing business, within Indian country (a term generally meaning American Indian reservations, although it can be broader than that).

Absent treaty language or express statutory language to the contrary, tribal members are subject to federal taxes of general application, such as the income tax. The Internal Revenue Code does contain some specific provisions exempting certain sorts of income, such as that from fishing-rights related activities, from taxation. In general, nonmembers of a tribe who …

Abandoning The Pia Standard: A Comment On Gila V, Galen Lemei

Michigan Journal of Race and Law

Part I of this Note examines the development of Indian reserved water rights, and the practicably irrigable acreage method of quantifying those rights, as defined by the Court. Part II describes the arguments of state and private interests that oppose broad Indian water rights. Part III discusses Gila V, including the Arizona Supreme Court's rationale for abandoning the standard set forth by the U.S. Supreme Court and the standard for quantifying Indian reserved rights that the court applied in its place. Part IV analyzes the Arizona Supreme Court's justifications for abandoning the standard, and considers alternate grounds for the …

Protecting The Rights Of Indigenous Cultures Under The Current Intellectual Property System: Is It A Good Idea?, 3 J. Marshall Rev. Intell. Prop. L. 88 (2003), Juan Andrés Fuentes

UIC Review of Intellectual Property Law

Globalization and digital communication trends have provided new avenues and incentives for the commercial use of the folkloric artwork of indigenous peoples. Such commercial uses, however, have occurred largely without any creative control or financial benefit inuring to the original creators, people, or tribe of whom the artistic works form an integral part of their culture. Since much of the works are owned by a community as a whole, as opposed to being owned by individuals, it is difficult to fit such works into an intellectual property regime that is based on laws formed around Western notions of art and …

A Doctrinal Traffic Jam: The Role Of Federal Preemption Analysis In Conflicts Between State And Tribal Vehicle Codes, Kathleen Corr

University of Colorado Law Review

No abstract provided.

Timpanogos Tribe V. Conway: Fishing For An Exception To State Sovereign Immunity In Natural Resource Regulation, Susan R. Fiorentino

Villanova Environmental Law Journal (1991 - )

No abstract provided.

A Review Of South Dakota Criminal Justice: A Study Of Racial Disparities By Richard Braunstein And Steve Feimer, Frank Pommersheim, Elsie Meeks

Faculty Publications

No abstract provided.

Specific Relief For Ancient Deprivations Of Property, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

I consider in this paper the extent to which courts rationally and on a principled basis can deny to aboriginal claimants, despite the ancientness of their claims, the specific relief of being restored to possession of their aboriginal lands where the case for such specific relief is otherwise made. The paper begins with a brief discussion of the foundations of property in the Western conception, then goes on to discuss the Europeans' asserted title to indigenous lands and the various theories of aboriginal title that have emerged. It then explores the past and existing legal obstacles to the judicial resolution …

Indian Tribal Courts, Frank Pommersheim

Faculty Publications

No abstract provided.

Current Issues In Native American Law, Martha Vazquez, Taiawagi Helton, Paul Frye, Gloria Valencia-Weber, Samuel Winder, John Echohawk

Faculty Articles

No abstract provided.

Nation Building In Indian Country: The Blackfoot Constitutional Revision, Taiawagi Helton

Faculty Articles

No abstract provided.

Filling In The Blank Spots On Powell's And Stegner's Maps: The Role Of Modern Indian Tribes In Western Watersheds, Charles Wilkinson

Publications

No abstract provided.

Winner, Best Appellate Brief In The 2003 Native American Law Student Association Moot Court Competition, Matthew Baumgartner, Elizabeth Ann Kronk

American Indian Law Review

No abstract provided.

Compulsory Party Joinder And Tribal Sovereign Immunity: A Proposal To Modify Federal Courts' Application Of Rule 19 To Cases Involving Absent Tribes As "Necessary" Parties, Nicholas V. Merkley

Oklahoma Law Review

No abstract provided.

Treaty-Based Exclusions From The Boundaries And Jurisdiction Of The States, John W. Ragsdale Jr

Faculty Works

The Johnson County, Kansas codes officer, charged with the personal service of citations for the unlawful sale of fireworks on Shawnee Reserve 206, probably should have mailed them, as had been done in the past. On the other hand, Jim Oyler, Jr., who was fortunate to escape prosecution after pushing an official around and breaking his cell phone a year and a half earlier, probably should have shown restraint. Tensions run high on Lot 206, however, and restraint has seldom been the watchword. Jim Oyler, Jr., when confronting the officer on the roadway leading into the 94-acre parcel, asserted the …

Indian Gambling In Ohio: What Are The Odds?, Blake Watson

School of Law Faculty Publications

This article describes the options available to Indian groups and recognized Indian tribes to establish off-reservation gaming operations pursuant to the Indian Gaming Regulatory Act.

A Constitutional Confession: The Permanent If Malleable Status Of Indigenous Nations, David E. Wilkins

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

I appreciate the opportunity to address such an august group of students and faculty. When Amy invited me to join you, and she certainly is a very persuasive person, I debated long and hard on what kind of talk to give since I study politics comparatively. Although much of my work is infused with law and history, and a smidgen of culture, economics, and geography, I work largely at the intersection of politics, history and law, and have coined the awkward though accurate term, "Polegalorian," to describe what I do. My research is concerned broadly with how indigenous peoples generate, …

Indigenous Nations As Reserved Sovereigns, David E. Wilkins

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

Some adhere to the idea that the federal government, as a democratic state founded on the rule of law, contains within its legal and political institutions and ideologies a framework that provides the necessary vaccines that will eventually cure the various and sundry indigenous ailments generated throughout American society by its social, economic, political and legal institutions.

By contrast, there are others who vigorously argue that the prevailing institutions of governance and law of the United States are incapable of providing justice to First Nations because they entail systems, ideologies, and values that represent non-Indians and thus they cannot possibly …

The Indigenous Vote: Protecting Or Endangering Sovereignty?, David E. Wilkins

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

Much ado has been made about the 2002 mid-term congressional and gubernatorial elections. Democrats are bemoaning the Republican's treble triumph—congressional control, an invigorated Bush administration, and conservative rule on the supreme court. Republicans are exulting in their perceived conservative mandate—to address the War on Terror, privatize Social Security, and roll back environmental regulations that are deemed overly restrictive of private and public property development. And the inconsistent American voter, depending on race, socio-economic status, and issue salience, seems either unenthusiastic, ambivalent, or wildly animated about politics.

First Nations And States: Contesting Polities, David E. Wilkins

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

The U.S. Supreme Court in an historic case in 1886, U.S. v. Kagama, which devastated tribal sovereignty by affirming the legality of the 1885 Major Crimes Act that problematically extended federal criminal jurisdiction over "all" Indians for seven major crimes—murder, manslaughter, rape, etc., (today that number has increased to 14 crimes)—more accurately declared in that same case that state governments could be characterized as the "deadliest enemies" of indigenous nations.

Native State Lawmakers: Minimizing The Tribal Disadvantage, David E. Wilkins

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

Not surprisingly, most of these lawmakers are serving in western states where more than 80 percent of indigenous peoples live—Alaska is home to 11 Native lawmakers; Montana has elected seven; New Mexico's legislature now has five Indian legislators; Oklahoma, Arizona, and South Dakota each have three Indian representatives; Washington has two; and Colorado and North Dakota have one each. Eastern states also have indigenous representation: Maine has two representatives—a Penobscot and a Passamaquoddy; North Carolina's Lumbee tribe has a member in the state legislature; and Vermont has a lone Native member.

Our preliminary results give us reason to be moderately …

Western Justice, Richard B. Collins

Publications

No abstract provided.

Sacred Sites And Religious Freedom On Government Land, Richard B. Collins

Publications

No abstract provided.

Water Management In The United States And The Fate Of The Colorado River Delta In Mexico, David H. Getches

Publications

No abstract provided.