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In The Absence Of Title: Responding To Federal Ownership In Sacred Sites Cases, Kristen A. Carpenter

Publications

This paper examines the challenge of protecting American Indian sacred sites located on federal public lands. Many have addressed this issue in the religious freedoms context, but I believe the problem is just as much about property law. The Supreme Court's decision in Lyng v. Northwest Indian Cemetery Protective Association, for example, would appear to suggest that federal ownership of certain sacred sites trumps tribal free exercise clause claims regarding those sites. This holding corresponds with a classic model in which "[p]roperty is about rights over things and the people who have those rights are called owners." However, a …

Progressing Back: A Tribal Solution For A Federal Morass, James T. Hamilton

American Indian Law Review

No abstract provided.

Chickasaw Nation V. United States And The Potential Demise Of The Indian Canon Of Construction, George Jackson Iii

American Indian Law Review

No abstract provided.

Indian-Law Scholarship And Tribal Survival: A Short Essay, Prompted By A Long Footnote, Robert Laurence

American Indian Law Review

No abstract provided.

The Land Must Hold The People: Native Modes Of Territoriality And Contemporary Tribal Justifications For Placing Land Into Trust Through 25 C.F.R Part 151, Padraic I. Mccoy

American Indian Law Review

No abstract provided.

Lottery Logistics: The Potential Impact Of A State Lottery On Indian Gaming In Oklahoma, Steve J. Coleman

American Indian Law Review

No abstract provided.

Seeking Acceptance: Are The Black Seminoles Native Americans? Sylvia Davis V. The United States Of America, Martha Melaku

American Indian Law Review

No abstract provided.

Chickasaw Nation V. United States: The Beginning Of The End Of The Indian-Law Canons In Statutory Cases And The Start Of The Judicial Assault On The Trust Relationships?, Graydon Dean Luthrey Jr.

American Indian Law Review

No abstract provided.

Overcoming The Politics Of Reform: The Story Of The Cherokee Nation Of Oklahoma Constitutional Convention, Eric Lemont

American Indian Law Review

A pressing international challenge is developing processes of constitution-making that manage the politics of reform and produce legitimate and effective constitutions. This challenge is of special concern for numerous American Indian nations that have been embroiled in dual governments and constitutional crises over the past several decades. This article traces the recent constitutional reform process of the second largest Indian nation in the United States, the Cherokee Nation of Oklahoma. During the middle of its own constitutional crisis in 1999, the Nation formed an independent constitution commission and held a nine-day constitutional convention. The inclusiveness and independence of these two …

Sawnawgezewog: "The Indian Problem" And The Lost Art Of Survival, Matthew L. M. Fletcher

American Indian Law Review

No abstract provided.

Parental Ratification: Legal Manifestations Of Cultural Authenticity In Cross-Racial Adoption, Kevin Noble Maillard

American Indian Law Review

No abstract provided.

Has Oregon Tightened The Perceived Loopholes Of The Native American Graves Protection And Repatriation Act?--Bonnichsen V. United States, Michelle Sibley

American Indian Law Review

No abstract provided.

Whose Rights Are These Anyway?--A Rethinking Of Our Society's Intellectual Property Laws In Order To Better Protect Native American Religious Property, Suzanne Milchan

American Indian Law Review

No abstract provided.

Death Of A Monster: Laws May Finally Kill Gila River Adjudication, Lindsay Murphy

American Indian Law Review

No abstract provided.

The Competent Ward, Jeremy R. Fitzpatrick

American Indian Law Review

No abstract provided.

Protecting Tribal Stories: The Perils Of Propertization, Stephen D. Osborne

American Indian Law Review

No abstract provided.

Cheyenne Way Of Peace And Justice: The Post Lewis And Clark Period To Oklahoma Statehood, Lawrence H. Hart

American Indian Law Review

No abstract provided.

Risk Avoidance, Cultural Discrimination, And Environmental Justice For Indigenous Peoples, Catherine O'Neill

Faculty Articles

This article begins with the recognition that environmental justice for Native peoples requires attention to the interrelated cultural, spiritual, social, ecological, economic, and political dimensions of environmental issues. It observes, moreover, that “environmental justice requires an appreciation of each tribe’s particular historical circumstances and contemporary understandings, including each group’s aspirations for the flourishing of its culture.” It contends that some environmental decision makers and commentators have increasingly come to embrace “risk avoidance” – strategies that call upon risk-bearers to alter their practices in order to avoid the risk of environmental harms – in lieu of risk reduction – strategies that …

Law, Theory And Aboriginal Peoples, Gordon Christie

All Faculty Publications

Some Aboriginal people see domestic Canadian law as alien and oppressive. This paper explores one source of this perception. By examining the layers of theory and world-view upon which the law is based, it finds conflict with the sensibilities of Aboriginal peoples. The author argues that a liberal vision supports and enlivens the law, and because it is grounded in this vision, the law cannot protect the interests of Aboriginal peoples. In analyzing the current legal approach to the protection of Aboriginal interests, an alternative liberal argument based on group autonomy is also considered. By examining the debate between liberal …

Indigenous Territoriality In Canadian Courts, Douglas C. Harris

All Faculty Publications

Territoriality describes the communication or assignment of meaning to particular boundaries in order to assert control over a define space. It encompasses the strategies, used by those attempting to maintain control and those seeking to acquire it, to give meaning to the spatial boundaries that demarcate jurisdiction. This chapter explores the competing territorialities of the Canadian state and indigenous peoples in the context of litigation over Aboriginal rights to fish. Access to and management of the fisheries have been and continue to be one of the principal points of conflict between the state and indigenous peoples. The disputes frequently lead …

What Indian Tribes Can Do To Combat Child Sexual Abuse (Issue Paper), Larry Echohawk, Pawnee Indian Tribe, Tessa Meyer Santiago

Tribal Law Journal

One of the most destructive problems affecting children in "Indian country" today is sexual abuse. Increasing reports of child sexual abuse and the severe impact this type of crime has on Indian youth and their families have prompted tribal leaders to voice great concern about the impact of this crime on Indian communities.

Law Enforcement Authority In Indian Country, Melissa L. Tatum

Tribal Law Journal

The protection order has proven to be an effective tool in the war against domestic violence. A protection order, however, is good only so long as it can be enforced, and enforcement has proven to be a problem when a person travels with a protection order to a different jurisdiction.

Expanding The Network Of Safety: Tribal Protection Orders For Survivors Of Sexual Assault, Sara Deer

Tribal Law Journal

The right to exist in a world free from violence is a basic tenet in many indigenous cultures and governments. The epidemic of sexual violence perpetrated against Native American women in the United States reflects a fundamental breakdown in the cultural and legal norms that have served to provide protection to Native women from time immemorial.

Anderson V. Weatherwax, 02-Nov-13 (Blkft. Tr. Ct. App., November 13, 2002), Blackfeet Appellate Court

Court Decisions

In this case, a vehicle driven by the daughter of Defendant, crashed into a building owned by the Plaintiff. Damages were sought in the amount of $10,000 through a civil complaint. Upon filing, the tribal court clerk informed the Plaintiff that he would have to personally serve the Defendant with the complaint, to which Plaintiff did.  Defendant did not answer the complaint within the required 20 days. Plaintiff then filed a petition in the court requesting default judgment to which Defendant also failed to respond to. Plaintiff was then granted a default judgment in the amount of $8,800. Plaintiff moved …

Towards Tribal Sovereignty And Judicial Efficiency: Ordering The Defenses Of Tribal Sovereign Immunity And Exhaustion Of Tribal Remedies, Kirsten Matoy Carlson

Michigan Law Review

In 1985, the Narragansett Indian Tribe ("Tribe") created the Narragansett Indian Wetuornuck Housing Authority ("Authority"). The Authority, which acts on the Tribe's behalf in its housing development and operations, entered into a contract with the Ninigret Development Corporation for the construction of a low-income housing development. After construction began, disputes developed over how to proceed with the construction. When conciliation efforts failed, the Authority cancelled the contract. The Narragansett Tribal Council, the governing body of the Tribe, followed the forum selection clause in the contract and notified the disputants that it would hold a hearing to resolve the dispute. Ninigret …

Extending Winters To Water Quality: Allowing Groundwater For Hatcheries, Amy Choyce Allison

Washington Law Review

The Winters Doctrine of federally reserved water rights applies to groundwater and water quality. Because most Indian tribes would have no water rights under state law, the reserved water rights doctrine, known as the Winters Doctrine, emerged to establish a federal right to water on Indian reservations sufficient to fulfill the purposes of the reservation. The reserved water rights doctrine originated in Winters v. United States, which was preceded by two cases upholding the federal government's right to reserve certain water rights. Winters rested on one of the Canons of Construction for Indian treaties that require agreements involving Indians …

Memorandum Opinion Re Chippewa Cree Tribe-Mt Compact, Mt Water Court

Native American Water Rights Settlement Project

Memorandum Opinion re Chippewa Cree Tribe-MT Compact, MT Water Court: Procedural History, p. 1; Preliminary Review of Chippewa Cree Tribe – Montana Compact p. 11; Summary of Compact p. 12; Preliminary Conclusion, P. 16; Objections and Heightened Review, p. 17; Conclusion p. 43.

Zuni Indian Tribe Water Rights Settlement In The Little Co River Basin, Zuni Indian Tribe Et Al

Native American Water Rights Settlement Project

Settlement Agreement: Zuni Indian Tribe Water Rights Settlement in the Little CO River Basin (June 7. 2002) Parties: Zuni Indian Tribe, US, AZ, AZ Game & Fish Commission, AZ State Land Department, AZ State Parks Board, St. Johns Irrigation & Ditch Co., Lyman Water Co., Round Valley Water Users’ Ass’n, Salt River Project Agricultural Improvement & Power District, Tucson Electric Power Co., City of St. Johns, Town of Eagar, and Town of Springerville.

The Agreement resolves the Zuni Indian Tribe water rights in the Little CO River basin, AZ. The Zuni Tribe intends to reestablish and maintain the wetland environment …

Tribe V. Tail Feathers, 21-Ap-17 (Blkft. Tr. Ct. App., May 13, 2002), Blackfeet Appellate Court

Court Decisions

• In the Blackfeet Tribal Court of Appeals, the Court declined to vacate a conviction of a defendant where the defendant failed to appear and the Court proceeded in absentia. The Defendant appealed based on Speedy trial considerations because 194 days had elapsed between arrest and trial. The Court clarified that the Speedy Trial timeline of 180 days, in MadPlume, is not a hard and fast deadline. Any dismissal on speedy trial grounds lies in the sound discretion of the trial court and can be based on various factors, including: 1) whether the defendant pursued a speedy trial; 2) the length …

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Premature Predictions Of Multiculturalism?, Kirsten Matoy Carlson

Michigan Law Review

The late twentieth century ushered in a renewed interest in constitutional democracy as Latin American states revised earlier constitutions and post-Communist countries in Eastern Europe wrote new constitutions to reflect their democratic aspirations. Processes of constitution-making continued throughout the 1990s with new constitutions emerging in states throughout Africa, Latin America, and Europe. The rejuvenation of constitution-making also renewed scholarly interest in comparative constitutionalism. Scholars investigating constitution-making processes in Eastern Europe and Africa soon developed theories on how these processes and the contents of national constitutions changed in the late twentieth century. Donna Lee Van Cott contributes to the new literature …