Indigenous, Indian, and Aboriginal Law Commons^™

Self-Determination For Indigenous Peoples At The Dawn Of The Solar Age, Dean B. Suagee

University of Michigan Journal of Law Reform

In addition to challenging readers to help make the principle of self-determination a reality for indigenous peoples, this Article challenges indigenous leaders, especially those in the United States, to help formulate our collective vision of a sustainable future and to provide leadership in making that vision a reality. The United Nations has designated 1993 the International Year for the World's Indigenous Peoples, and this event will provide tribal leaders with opportunities to have their voices heard. Tribal leaders in the United States should take full advantage of these opportunities and step to the forefront of the movement to hasten the …

Repatriation And Cultural Preservation: Potent Objects, Potent Pasts, Peter H. Welsh

University of Michigan Journal of Law Reform

Parts I and II discuss the preservation idea itself and the history of museums' participation in cultural preservation efforts. Parts III and IV then look specifically at the repatriation issue, providing some background on initiatives that have influenced peoples' thoughts and actions. Finally, Part V outlines and discusses some of the issues that have made resolution of the repatriation issue particularly complex.

Democracy And Respect For Difference: The Case Of Fiji, Joseph H. Carens

University of Michigan Journal of Law Reform

In what follows, I will first offer a capsule history of Fiji. I then will identify some of the moral questions that emerge, both for the inhabitants of Fiji and for us as observers. I will present some tentative answers to these moral questions, reflecting as I go on what this tells us about the possibilities and limits of normative theory, but also trying to note where my normative judgments rest upon features of the story that I think others would want to contest and trying to indicate how alternative readings of the history would affect the normative judgments, if …

In Re Tatsey Children, 91-J-72 (Blkft. Tr. Ct. App., May 28, 1992), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court granted a Writ of Habeas Corpus and ordered the immediate release of an individual erroneously placed in the BIA Jail on a 72 hour hold for failure to comply with a court order to get as assessment for drugs and alcohol by May 22, 1992. The underlying order arose from a custody dispute over Defendant’s children where the Defendant agreed to voluntarily see drug and alcohol evaluation. No evidence was present to substantiate involuntary commitment.

Racine V. Morgan, 92-Ap-07 (Blkft. Tr. Ct. App., May 11, 1992), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court the Court granted a defendant’s motion to dismiss, holding he may not be held liable if negligence of driver is not imputed to the owner. In this case, no facts support that the owner (defendant) of the vehicle was the driver of the vehicle when it collided with plaintiff’s vehicle. Fundamental rule of law recognizes that negligence of the driver cannot be imputed to the owner of the vehicle, absent special conditions. The Claim was dismissed for failure to state a claim upon which relief could be granted.

Black Hills/White Justice: The Sioux Nation Versus The United States, Martin J. Lalonde

Michigan Law Review

A Review of Black Hills/White Justice: The Sioux Nation Versus the United States by Edward Lazarus

In Re Custody Of Dfs, A Minor Child 92-Ap-4 (Blkft. Tr. Ct. App., April 29, 1992), Blackfeet Appellate Court

Court Decisions

• In the Blackfeet tribal Court of Appeals, the Court considered whether the best interests of a child surpass the interests of other interested parties.

• The Court affirmed a lower court decision awarding custody of DFS to the child's natural parents over the child’s grandparents. In the view of the Court, the interests of the minor child are paramount to the interests of all other interested parties. The Court will not disturb the findings of a lower court to the best interests of the child absent evidence that the lower court failed to adequately consider contrary evidence. It is the duty …

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In Re Dfse, A Minor Child, 92-Ap-04 (Blkft. Tr. Ct. App., April 29, 1992), Blackfeet Appellate Court

Court Decisions

• In the Blackfeet Tribal Court of Appeals, the Court affirmed a lower court determination to award custody of a minor child to the child’s natural parents, over the objection of the grandparents, who also sought custody. The Court noted that the interests of the minor child are paramount to the interests of all other interested parties. It is the responsibility of the trial court judge to evaluate testimony that is made available to him at the trial level to ascertain what is best for the minor child. The Court recognizes that the natural aprents are the nuclear family and thus …

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In Re Vielle Children, 92-Ap-05 (Blkft. Tr. Ct. App., April 27, 1992), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court vacated a prior temporary custody order which granted custody to the natural mother, and restored custody to the natural father. The Court reasoned that the previous temporary Custody Order was issued ex parte, directly to the judge without the other party’s knowledge, a practice that has been long prohibited. The lower court judge was removed from that case and deprived of all authority over this matter. This order violated due process rights of the father and the Blackfeet Law and Order Code.

In Re Vielle Children, 92-Ap-05 (Blkft. Tr. Ct. App., April 27, 1992), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court vacated a prior temporary custody order which granted custody to the natural mother, and restored custody to the natural father. The Court reasoned that the previous temporary Custody Order was issued ex parte, directly to the judge without the other party’s knowledge, a practice that has been long prohibited. The lower court judge was removed from that case and deprived of all authority over this matter. This order violated due process rights of the father and the Blackfeet Law and Order Code.

In Re Am, A Minor Child, 92-Ap-03 (Blkft. Tr. Ct. App., April 15, 1992), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court reversed a lower court order determining a dispute over an emergency custody order. Teh Court made the determination to reverse the lower court determination partly based on the lack of sufficient evidence to warrant emergency removal of the child. Ch. 7, Se. 4, of the Blackfeet Law and order Code requires a show cause hearing where evidence is presented to substantiate immediate and//or apparent danger of violence or serious bodily injury to the child. Additionally, a child is entitled to representation through guardian-ad-litem. The Court clarified that a Juvenile Officer is …

Resource Law Notes Newsletter, No. 25, Spring Issue, Apr. 1992, University Of Colorado Boulder. Natural Resources Law Center

Resource Law Notes: The Newsletter of the Natural Resources Law Center (1984-2002)

No abstract provided.

A Genealogy Of Law: Inherent Sovereignty And First Nations Self-Government, John J. Borrows

Osgoode Hall Law Journal

First Nations self-government in Canada has often been regarded as extinguished or delegated from the British Crown or the Canadian federal government. First Nations self-government among the Chippewas of the Nawash Band in southern Ontario has not been extinguished or delegated, but continues to exist as an inherent exercise of community sovereignty. The idea of existing Aboriginal self-government in modern-day Ontario contrasts with many prevailing notions about Native society in Canada today. The inherent and unextinguished nature of self-government among the Nawash Band is demonstrated by examining the events of the author's ancestors and community in their interactions with foreign …

Fifth Amendment Takings Implications Of The 1990 Native American Graves Protection And Repatriation Act, Ralph W. Johnson, Sharon I. Haensly

Articles

In November 1990, Congress passed the Native American Graves Protection and Repatriation Act ("NAGPRA"). NAGPRA provides for the protection and disposition of Native American cultural items discovered on federal or tribal lands after NAGPRA's effective date. NAGPRA also addresses disposition of those objects currently held or controlled by federal agencies and museums. NAGPRA represents Congress' attempt to resolve years of debate between tribes, archaeologists, and museums. Like any legislative pronouncement, however, Congress left key issues to agencies and courts to resolve. This article focuses upon one such area, namely, Fifth Amendment takings questions that may arise when tribes or individual …

Child Welfare Law, "Best Interests Of The Child" Ideology, And First Nations, Marlee Kline

Osgoode Hall Law Journal

Liberalism has structured legal discourse such that racism is most often unintended and rarely explicit. To understand how and why law has an oppressive and discriminatory impact on First Nations and other racialized groups in Canadian society, one must look at some of its more subtle processes and, in particular, its ideological form. The goal of this article is to provide insight into the origins and operation of "best interests of the child" ideology and to illustrate how it structures and constrains judicial decision making in the context of First Nations child welfare. Best interests ideology serves to portray the …

Tribe V. Glaze, 92-Ap-01 (Blkft. Tr. Ct. App., March 17, 1992), Blackfeet Appellate Court

Court Decisions

The Blackfeet Tribal Court of Appeals remanded this case back to the lower court for an immediate jury trial for two reasons. First, the court held that the Tribal Court exists to protect the rights of the people. The prosecutor was allowed to assume a case practically as it came before the bench does not ensure that an orderly, consistent, fair judicial process can be followed. The Tribal Court’s professionalism is allowed to be diminished during these times, in which the appellant’s are likely to find a substantiated basis to have decisions reversed. Second, the court held that once a …

Resource Law Notes Newsletter, No. 24, Jan. 1992, University Of Colorado Boulder. Natural Resources Law Center

Resource Law Notes: The Newsletter of the Natural Resources Law Center (1984-2002)

No abstract provided.

Tribal Businesses And The Uncertain Reach Of Tribal Sovereign Immunity: A Statutory Solution, Steve E. Dietrich

Washington Law Review

The effect of tribal sovereign immunity on business transactions is difficult to predict, despite the doctrine's often dramatic importance. Unlike the sovereign immunities of state, federal, and foreign governments, the scope of tribal immunity is not defined by statute. Some courts have applied the doctrine in a manner that is contrary to federal Indian law and policy. The resulting unpredictability hampers tribal economic development. This Comment proposes a federal tribal immunity statute that would affirm the general principles of the common law and explicitly immunize all entirely tribal-owned enterprises whether operating on- or off-reservation.

Where Do The Buffalo Roam? Determining The Scope Of American Indian Off-Reservation Hunting Rights In The Pacific Northwest, Bradley I. Nye

Washington Law Review

Courts have failed to develop a uniform test to determine the extent of Indian off-reservation hunting rights in the Pacific Northwest. Though the language guaranteeing these rights is consistent from treaty to treaty, analysis of this language varies widely from court to court. The United States Supreme Court employs three well-founded canons of construction in its interpretations of Indian treaties. These same principles should be applied by lower courts to determine the extent of off-reservation hunting rights. Consistent use of accepted canons of treaty construction would add much certainty to an area of law plagued by uncertainty and controversy.

The Legal Basis Of Aboriginal Title, Brian Slattery

Articles & Book Chapters

This paper considers a range of differing approaches to the question of Aboriginal land rights in the light of the judgment of the B.C. Supreme Court in the Delgamuukw case.

First Nations And The Constitution: A Question Of Trust, Brian Slattery

Articles & Book Chapters

This article argues that the fiduciary relationship between Aboriginal peoples and the Crown is a special instance of a general doctrine of collective trust that animates the Canadian Constitution as a whole. This doctrine sheds light on the federal structure of Canada the unique status of Quebec, and the position of First Nations as a self-governing polities within Confederation. The article explores the origins and character of the constitutional trust, and considers its application to issues surrounding the inherent Aboriginal right ofself-government and Aboriginal land rights.

Justice, Community And Differences: The Challenge From Indian Country, Frank Pommersheim

Faculty Publications

No abstract provided.

Liberation, Dreams, And Hard Work: An Essay On Tribal Court Jurisprudence, Frank Pommersheim

Faculty Publications

No abstract provided.

A Path Near The Clearing: An Essay On Constitutional Adjudication In Tribal Courts, Frank Pommersheim

Faculty Publications

No abstract provided.

Who's In Charge Of U.S. Indian Policy?: Congress And The Supreme Court At Loggerheads Over American Indian Religious Freedom, David E. Wilkins

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

The federal government's three branches—executive, legislative, judicial, and that unwieldy mass known simply as "the bureaucracy" have, during the last half-decade—1987-1991—produced a dizzying crop of laws, policies, proclamations, regulations, and court decisions which have served simultaneously to 1) reaffirm tribal sovereignty; 2) permit and encourage greater state interference within Indian Country; 3) enhance federal legislative authority over tribes; and 4) deny constitutional free-exercise protections both to individual Indians and to tribes.

On the legislative side, Congress has established the experimental Tribal Self-Governance Demonstration Project which is a major step towards restoring the tribal right of self-determination, and is discussing the …

Internal Tribal Fragmentation: An Examination Of A Normative Model Of Democratic Decision-Making, David E. Wilkins

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

A recent commentary by Gerald A. Alfred in the spring 1991 edition of the Northeast Indian Quarterly dealt with a subject matter which is either ignored or radically exaggerated when it is broached in Indian Country: political fragmentation (or segments or cleavages) and ideological conflict within North American Indian tribes and the ramifications of such internal conflict on tribal identity.

This paper, after restating Alfred's major points about Mohawk segmentation at Kahnawake, describes and then analyzes a viable alternative democratic decision-making model which has been specifically designed to address the problems of how not only to restore, but also to …

Indians' Right To Fish: The Background, Impact, And Legacy Of United States V. Washington, Shannon Bentley

American Indian Law Review

No abstract provided.

Federal Acknowledgement Of American Indian Tribes: Authority, Judicial Interposition, And 25 C.F.R. § 83, William W. Quinn Jr.

American Indian Law Review

No abstract provided.

Natural Resources Development On Indian Reservations: Overview Of Tribal, State, And Federal Jurisdiction, Mary Beth West

American Indian Law Review

No abstract provided.

The Indian Tradition In Early American Law, Yasuhide Kawashima

American Indian Law Review

No abstract provided.