Indigenous, Indian, and Aboriginal Law Commons^™

Busted Pipes: A Review Of Tarrant Regional Water District V. Herrmann And The Lack Of Direction For Oklahoma And Texas Moving Forward In A Dry Environment, Jordan Lepage

American Indian Law Review

No abstract provided.

Knight V. Thompson: The Eleventh Circuit's Perpetuation Of Historical Practices Of Colonization, Randi Dawn Gardner Hardin

American Indian Law Review

No abstract provided.

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 …

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 …

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.

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 …

She Saves Us From Monsters: The Navajo Creation Story And Modern Tribal Justice, Heidi J. Todacheene

Tribal Law Journal

The goal of this paper is to attempt to provide a general social and political framework of the Navajo tribe using the creation story and journey narrative. This will provide a comprehensive insight into the history and modern functioning of the tribe for someone who may not understand traditional Navajo thought. Modern legal cases have been integrated into this paper to demonstrate how Navajo courts use and preserve traditional concepts in current legal analysis. This paper will try to convey a traditional Navajo perspective whose ideology is deeply rooted in the creation story and illustrated through the Holy Beings, especially …

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 …

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 …

Criminal Justice In Indian Country, M. Alexander Pearl

Faculty Publications

This Article examines the role played by different enacted legislation on California’s Indian tribes criminal justice system. For centuries, tribal governments were the only entities with criminal jurisdiction in Indian Country. In 1883, the Supreme Court in Ex parte Kan-Gi-Shun-Ka (Ex parte Crow Dog) confirmed that a crime committed by an Indian against another Indian did not give rise to federal jurisdiction. In response, Congress passed the Major Crimes Act, granting federal authorities the power to investigate, enforce, and prosecute certain crimes occurring in Indian Country. The federal statutes creating federal jurisdiction did not preclude tribal jurisdiction, but states …

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 …

Montana's Rural Version Of The School-To-Prison Pipeline: School Discipline And Tragedy On American Indian Reservations, Melina Healey

Scholarly Works

American Indian adolescents in Montana are caught in a school-to prison pipeline. They are plagued with low academic achievement, high dropout, suspension and expulsion rates, and disproportionate contact with the juvenile and criminal justice systems. While these are typical of the school-to-prison phenomenon as it also appears in poor minority communities across the country, the rates and the disproportion for American Indians in Montana are particularly acute. Even more disturbing, many American Indian students in Montana are also the victims of another heartbreaking trend related to the school-to-prison pipeline — alarming levels of adolescent suicides and self-harm. The tragic situation …

Restoring Sacred Waters: A Guide To Protecting Tribal Non-Consumptive Water Uses In The Colorado River Basin, Julie Nania, Julia Guarino, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Books, Reports, and Studies

105 p. : color illustrations ; 28 cm

Introduction -- Gathering information and starting the process -- Indian federal reserved water rights -- Using Indian federal reserved water rights for instream flows -- Negotiating for non-consumptive uses in settlement agreements -- Protecting non-consumptive uses in tribal water codes -- Other legal tools -- Irrigating for instream flows and traditional plants -- Summary and key points

In Plain View, Christina D. Ponsa-Kraus

Faculty Scholarship

In this tightly argued and thoroughly engaging article, Gregory Ablavsky makes the case for a revisionist history of the U.S. Constitution that places Native American Indians at its center. While it isn’t hard to show that conventional constitutional histories largely neglect Indians, it isn’t easy to prove that such neglect is not benign. That is, it’s one thing to argue that standard accounts should include a discussion of Indians, but it’s another thing entirely to make a convincing case that core constitutional understandings would be fundamentally altered if historians fully and prominently integrated the history of relations with Indians into …

Stabilizing Morality In Trademark Law, Christine Haight Farley

Scholarly Articles in Law Reviews & Journals

Almost all of the commentary concerning the statutory prohibition on registering offensive trademarks lambasts it as a misguided attempt to enforce civility through trademark law. This Article carefully considers the challenges accompanying section 2(a) of the U.S. Trademark Act and defends it as good policy. There are, however, a few instances in which the jurisprudence under section 2(a) has created more problems than it has solved. To alleviate these problems, this Article proposes judging words per se and abandoning the traditional trademark notion of evaluating words in context. Judging words per se is warranted given the very different objectives underlying …

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.

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 …

Tribal Advocacy And The Art Of Dam Removal: The Lower Elwha Klallam And The Elwha Dams, Julia Guarino

American Indian Law Journal

No abstract provided.

The Unextinguished Militia Power Of Indian Tribes, Seth Fortin

American Indian Law Journal

No abstract provided.

An American Indian Supreme Court, Eugene R. Fidell

American Indian Law Journal

No abstract provided.