Indigenous, Indian, and Aboriginal Law Commons^™

Constitutional Concern, Membership, And Race, Sarah Krakoff

Publications

American Indian Tribes in the United States have a unique legal and political status shaped by fluctuating federal policies and the over-arching history of this country’s brand of settler-colonialism. One of the several legacies of this history is that federally recognized tribes have membership rules that diverge significantly from typical state or national citizenship criteria. These rules and their history are poorly understood by judges and members of the public, leading to misunderstandings about the “racial” status of tribes and Indian people, and on occasion to incoherent and damaging decisions on a range of Indian law issues. This article, which …

The Tribes Must Regulate: Jurisdictional, Environmental, And Religious Considerations Of Hydraulic Fracturing On Tribal Lands, Szonja Ludvig

BYU Law Review

No abstract provided.

Indigenous Rights Litigation, Legal History, And The Role Of Experts, Kent Mcneil

Articles & Book Chapters

Litigation involving the rights of Indigenous peoples in Canada usually involves historical facts and events from a long time ago, sometimes as far back as 400 years. This reality presents significant challenges for proof of the facts upon which these rights are based. In addition to historical documents, the parties have to rely on testimony by Indigenous witnesses who are able to present the oral histories and traditions of their people, as well as on the opinion evidence of experts such as archaeologists, anthropologists, linguists, historians, ethnohistorians, and legal historians. In this paper, I examine the role of legal historians …

Of "Texans" And "Custers": Maximizing Welfare And Efficiency Through Informal Norms, M. Alexander Pearl

Faculty Articles

Professor Robert Ellickson (Yale) theorized that the informal norms of a close-knit community maximize aggregate welfare and Professor Barak Richman (Duke) identified two distinct types of private ordering systems: “shadow of law” and “order without law.” Under the Ellickson-Richman structure, many Indian tribes qualify as close-knit groups where informal norms effectively operate. The additional trait of isolation — both geographic and cultural — makes them ideal communities for the prioritization of informal norms. The imposition of external law, such as state law, is harmful and unnecessary to the maintenance of order in these communities. Recent legislative efforts to ameliorate criminal …

Equally Recognized? The Indigenous Peoples Of Newfoundland And Labrador, Sébastien Grammond

Osgoode Hall Law Journal

In Canada, certain Indigenous groups are struggling to obtain official recognition of their status and rights. This is particularly so in Newfoundland and Labrador, where the authorities took the stance, when the province joined Canada in 1949, that no one would be legally considered Indigenous. This paper analyzes the claims of the Indigenous groups of that province, which have resulted, over the last thirty years, in various forms of official recognition. In particular, this article highlights how the concept of equality was used by these Indigenous groups to buttress their claims. Equality, in this context, was mainly conceived of as …

Comparative Institutional Competency And Sovereignty In Indian Affairs, Michalyn Steele

Faculty Scholarship

While vigorous debate surrounds the proper scope and ambit of inherent tribal authority, there remains a critical antecedent question: whether Congress or the courts are ultimately best situated to define the contours of inherent tribal authority. In February 2013, Congress enacted controversial tribal jurisdiction provisions as part of the Violence Against Women Act reauthorization recognizing and affirming inherent tribal authority to prosecute all persons, including non-Indian offenders, for crimes of domestic violence in Indian country. This assertion by Congress of its authority to set the bounds of tribal inherent authority -- beyond where the United States Supreme Court has held …

Converge! Reimagining The Movement To End Gender Violence Symposium: Panel On Intersections Of Gender, Economic, Racial, And Indigenous (In) Justice, Margaret E. Johnson

All Faculty Scholarship

JOHNSON: This presentation envisions what a better domestic violence legal system might look like for persons subjected to domestic abuse who have not had their needs met or who have been harmed by the current legal system. The paper reframes the focus of the civil legal system from a paradigm of safety into a paradigm of security, including economic, housing, health, and relationship security. This reframing permits a focus on the domestic violence legal system and its intersecting systems of oppression such as race, gender, class, and ethnicity.

Currently, the domestic violence legal system targets short-term physical safety of the …

Tribes Paying Outsiders To Audit Their Membership, David E. Wilkins

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

There is no greater responsibility for a tribal leader than to be a steward of their nation’s citizens/members. Yet in the area of constitutional reform and development, tribal membership, and enrollment policies and practices, many tribal governments have entrusted these most intimate of governmental responsibilities to outside organizations like CSN, Inc. (Constructing Stronger Nations)-DCIAmerica, the Harvard Project for American Indian Economic Development/Native Nations Institute, Automated Election Services, the Falmouth Institute, J. Dalton Institute, and others. In the case of membership, some of these for-profit organizations conduct, what I would suggest, are privacy invading enrollment audits.

A Possible Solution To The Problem Of Diminishing Tribal Sovereignty, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

The capacity of Indian tribal sovereignty to protect tribes from outside encroachment and interference has steadily diminished from when the concept was first enunciated in the nineteenth century in the Marshall Indian Law Trilogy. This article assumes as a working premise that only bringing tribes into the Constitution as co-equal sovereigns will end the attrition. The article examines how this might happen, either through creative interpretation of existing constitutional text or by amending the Constitution. Each of these proposals is examined to see if it empowers tribes to manage their futures more effectively, is capacious enough to include the vast …

Symposium Introduction, M. Alexander Pearl

Other Faculty Publications

No abstract provided.

How To Be An Authentic Indian, M. Alexander Pearl

Faculty Articles

The mascot and team name of the Washington, D.C. professional football team is making headlines. What do Authentic Indians really think about it? This essay clears the air by replacing the liberal media talking points with an actual viewpoint from Indian Country. This perspective gives an inside view into the significant efforts to maintain longstanding traits of “Indian-ness” against an onslaught of political correctness gone mad.

Review Of Colin Calloway, Pen And Ink Witchcraft: Treaties And Treaty Making In American Indian History, Bethany Berger

Faculty Articles and Papers

No abstract provided.

Introductory Remarks, James Anaya

Publications

These remarks were delivered at a Corporate Responsibility and Human Rights panel held on Wednesday, April 9, 2014.

Red Law, White Supremacy: Cherokee Freedmen, Tribal Sovereignty, And The Colonial Feedback Loop, Jeremiah Chin

Articles

Sovereignty and self-determination are cornerstones of arguments for Indigenous rights in the geographic United States. Both concepts assert an existence as Indigenous peoples, and reinforce status as nations with citizens and governments, rights and responsibilities, determined by Indigenous communities. In 2006, the Judicial Appeals Tribunal of the Cherokee Nation recognized that Lucy Allen and fellow Cherokee Freedmen, descendants of African slaves once owned by Cherokee, are citizens of the Cherokee Nation and had been citizens of the Cherokee Nation since the 1866 treaty with the United States. Less than a year later, the Cherokee Nation amended its constitution to limit …

A Dark Side Of Virtue: The Inter-American Court And Reparations For Indigenous Peoples, Thomas Antkowiak

Faculty Articles

"The Inter-American Court of Human Rights has now developed a significant jurisprudence on indigenous peoples, far more extensive than the case law of the other regional human rights tribunals. Also, unlike the various United Nations institutions that promote indigenous rights, the Inter-American Court issues binding and detailed judgments. As a result, the Court has become a global leader in the adjudication and redress of indigenous claims. For this reason, this first close and critical examination of the Court’s reparations for indigenous peoples is vital. With respect to non-monetary remedies, the Court has ordered the restitution of communal lands and other …

A Legal Practitioner’S Guide To Indian And Tribal Law Research, Kelly Kunsch

Faculty Articles

This article is a guide to legal research with the specific goal of assisting practitioners. The typical practitioner would be an attorney, but many professionals who work within the arena of Indian and tribal law may not have the formal legal training that attorneys do. The article is a discussion of the resources available to research the law, the issues that often arise in the area, and the approaches to take in applying the resources to the issues. It is not a classic bibliography listing resources (often alphabetically), and is not intended to be comprehensive in the resources mentioned. Acknowledging …

Residential Schools Litigation And The Legal Profession, Trevor C. W. Farrow

All Papers

The first purpose of this article is to examine some of the specific, problematic ways in which the adversarial process has handled the residential schools litigation. The second purpose, in the context of that litigation, is to examine whether the legal profession’s highly adversarial approach to survivors, their families and their claims has been consistent with the core values of the legal profession, and if so, whether those core values continue to be sustainable? What the residential schools legacy affords the legal profession is an opportunity to reflect not just on how it is handling this tragic legacy, but how …

The Continued Protection Of Indian Children And Families After Adoptive Couple V. Baby Girl: What The Case Means And How To Respond, Jack Trope, Adrian T. Smith

American Indian Law Journal

No abstract provided.

Creating Space For Reservation Growth, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

This brief article is a review of Robert J. Miller, Reservation "Capitalism": Economic Development in Indian Country (2012). It highlights some of the significant points Miller makes in his book and concludes that the book is a "must read" for those interested in reservation economic development.

Report Of The Nova Scotia Independent Panel On Hydraulic Fracturing, Frank Atherton, Michael Bradfield, Kevin Christmas, Shawn Dalton, Maurice Dusseault, Graham Gagnon, Brad Hayes, Constance Macintosh, Ian Mauro, Ray Ritcey

Reports & Public Policy Documents

On August 28, 2013, the Province of Nova Scotia and the Nova Scotia Department of Energy signed an agreement with the Verschuren Centre for Sustainability in Energy and the Environment at Cape Breton University to conduct an external review on the environmental, socio-economic, and health impacts of hydraulic fracturing. Simultaneously, Dr. David Wheeler, President and Vice Chancellor of Cape Breton University, was asked to convene and Chair the review and expert panel on a voluntary and unpaid basis.1 The mandate for the review was to: create a panel of technical experts based on input from the public and hire technical …