Indigenous, Indian, and Aboriginal Law Commons^™

Winner, Best Appellate Brief In The 2013 Native American Law Student Association Moot Court Competition, Zachary Diionno, Sommerset Wong

American Indian Law Review

No abstract provided.

The Promise And Perils Of Renewable Energy On Tribal Lands, Sara Bronin

Faculty Articles and Papers

No abstract provided.

The Conceptual And Jurisprudential Aspects Of Property In The Context Of The Fundamental Rights Of Indigenous People: The Case Of The Shuar Of Ecuador, Winston P. Nagan, Craig Hammer

UF Law Faculty Publications

This article draws attention to several problems relating to indigenous ownership of both real and intellectual property, and their related impact upon the well-being and essential dignity of indigenous peoples. Part II of this article introduces the concept of indigenous ownership of real and intellectual property. Part III digs deeper into challenges to indigenous ownership of land, using the Shuar people of Ecuador as a case study. Part IV examines the problem of bioprospecting, as well as some of its implications, and discusses how the problem has affected the Shuar. It additionally summarizes a few steps toward developing an effective …

Criminal Justice In Indian Country, Sarah Deer

Faculty Scholarship

On March 7,2013, President Obama signed the 2013 Violence Against Women Act Re-authorization ("VAWA 2013"). Contained within that legislation is a partial re-authorization of tribal criminal jurisdiction over non-Indians, which is a topic covered in this short article. VAWA 2013 recognizes that the inherent right of tribal nations includes criminal jurisdiction over non-Indian defendants accused of domestic violence. The topics discussed in this article-statistical evidence, interdiction of violence, and protecting Native women-will likely become even more important as tribal leaders and jurists consider the future of tribal self-determination and seek to realize the full potential of the changes created by …

Muscogee Constitutional Jurisprudence: Vhakv Em Pvtakv (The Carpet Under The Law), Sarah Deer, Cecilia Knapp

Tulsa Law Review

No abstract provided.

Priceless Property, Kirsten Matoy Carlson

Law Faculty Research Publications

In 2011, the poorest American Indians in the United States refused to accept over one billion dollars from the United States government. They reiterated their long-held belief that money--even $1.3 billion--could not compensate them for the taking of their beloved Black Hills. A closer look at the formation of the Sioux claim to the Black Hills helps us to understand why the Sioux Nation has repeatedly rejected compensation for land taken by the United States over 100 years ago. This article seeks to understand why the Sioux view the Black Hills as priceless property by studying the formation of the …

Jurisdiction And Human Rights Accountability In Indian Country, Kristen Matoy Carlson

Law Faculty Research Publications

No abstract provided.

We Are All Here To Stay? Indigeneity, Migration, And ‘Decolonizing’ The Treaty Right To Be Here, Amar Bhatia

Articles & Book Chapters

This article examines issues of transnational migration in the settler-colonial context of Canada. First, I review some of the recent debates about foregrounding Indigeneity and decolonization in anti-racist thought and work, especially in relation to critical and anti-racist approaches to migration. The article then moves from this debate to the question of ‘our right to be here’, the relationship of this right to the treaties, and how migrant rights and treaty relations perspectives might interact in a context that must be informed by Indigenous laws and legal traditions.

A Story Of Marguerite: A Tale About Panis, Case Comment, And Social History, Signa A. Daum Shanks

Articles & Book Chapters

Those interested in social history contend that social norms deserve attention due to how they impact and are affected by historical events. This subfield has contributed significantly to how larger historical mosaics are understood, and how themes specific to marginalized groups are appreciated today. By presenting the story of enslaved Indigenous woman in New France who was the first Indigenous civil litigant in Canadian history, and focusing on her representation in the colonial legal system, a number of themes emerge. Canada’s history of slavery becomes better understood, and in so doing, a challenge to social historians is presented. By examining …

The School-To-Prison Pipeline Tragedy On Montana’S American Indian Reservations, Melina A. Healey

Faculty Publications & Other Works

No abstract provided.

Never Construed To Their Prejudice: In Honor Of David Getches, Richard B. Collins

University of Colorado Law Review

This article reviews and analyzes the judicial canons of construction for Native American treaties and statutes. It discusses their theoretical justifications and practical applications. It concludes that the treaty canon has ready support in contract law and the law of treaty interpretation. Justification of the statutory canon is more challenging and could be strengthened by attention to the democratic deficit when Congress imposes laws on Indian country. Applications of the canons have mattered in disputes between Indian nations and private or state interests. They have made much less difference, and have suffered major failings, in disputes with the federal government. …

Indian Courts And Fundamental Fairness: Indian Courts And The Future Revisited, Matthew L.M. Fletcher

University of Colorado Law Review

This article comes out of the University of Colorado Law Review's symposium issue honoring the late Dean David H. Getches. It begins with Dean Getches's framework for analyzing Indian courts. I revisit Indian Courts and the Future, the 1978 report drafted by Dean Getches, and the historic context of the report. I compare the 1978 findings to the current state of Indian courts in America. This article focuses on the reality that the ability of Indian courts to successfully guarantee fundamental fairness in the form of due process and equal protection of the law for individuals under tribal government authority …

Remarks Of David H. Getches: Federal Bar Association Indian Law Conference (April 7, 2011), David H. Getches

University of Colorado Law Review

No abstract provided.

Fishable Waters, Catherine A. O'Neill

Faculty Articles

This article discusses the implications of tribes' treaty-secured rights to take fish for current efforts to set water quality standards in Washington and elsewhere in the Pacific Northwest. Among other things, this article considers the impact of ongoing treaty rights litigation, including the landmark ruling in the "culverts" case handed down by the Western District of Washington in March, 2013. Although this article focuses on agency decision making in the tribal context, it recounts a debate that has often been framed by arguments that are familiar from more general discussions of risk-based regulation. In fact, these generic arguments are often …

Rights, Resources And Rhetoric: Indigenous Peoples And The Inter-American Court, Thomas Antkowiak

Faculty Articles

In 2012, the Inter-American Court of Human Rights handed down Sarayaku v. Ecuador, a crucial decision on indigenous rights. This article considers how the Sarayaku judgment impacts the Court’s case law on indigenous lands and resources, and evaluates that jurisprudence as a whole. Examining the cases, it becomes evident that the Tribunal now connects a number of key indigenous rights to the right to property, Article 21 of the American Convention on Human Rights. When traditional lands are involved, the right to property has become the Court’s structural basis for indigenous rights. For significant reasons, however, the right to property …

Dakota Tribal Courts In Minnesota: Benchmarks Of Self-Determination, Sarah Deer, John E. Jacobson

Faculty Scholarship

Professor Frank Pommersheim has written that “[t]ribal courts are the front line institutions that most often confront issues of American Indian self-determination and sovereignty.”1 It is only fitting, then, that an issue devoted to the legal history and survival of Dakota people includes some information about the role Dakota tribal courts play in furthering the aims of self-determination. Of the over 565 federally recognized tribes in the United States, most operate some form of dispute resolution or judicial system—and all have distinct, unique histories and stories.2 Little has been written about the Dakota legal systems, and it is in the …

Corporate Responsibility And Climate Justice: A Proposal For A Polluter-Financed Relocation Fund For Federally Recognized Tribes Imperiled By Climate Change, Randall S. Abate

Journal Publications

Climate change threatens to displace as many as 200 million people internally and across national borders by the middle of the twenty-first century. Indigenous peoples are among the most vulnerable to these changes. With the loss of their village rapidly approaching, the residents of the Native Village of Kivalina are captives in their homeland bracing for disaster because they do not have the millions of dollars needed to relocate and there is no government fund or process in place to provide them with adequate assistance.

Part I of this article describes the factual context of the Kivalina litigation and how …

The Human Rights Of Indigenous Peoples: United Nations Developments, S. James Anaya

Publications

No abstract provided.

Tribal Rights, Human Rights, Kristen A. Carpenter, Angela R. Riley

Publications

No abstract provided.

Commonality Among Unique Indigenous Communities: An Introduction To Climate Change And Its Impacts On Indigenous Peoples, Randall S. Abate

Journal Publications

This special Issue of the Tulane Environmental Law Journal explores how climate change affects the rights of indigenous peoples. Climate change is a global environmental problem caused by greenhouse gas emissions. Indigenous peoples generally contribute very limited quantities of greenhouse gases to the global atmosphere. Although the causes of climate change are global, the adverse impacts of this problem are disproportionately burdening indigenous peoples.

In recognition of the growing global problem of climate change, legal strategies to address climate change through mitigation and adaptation have been undertaken. This Issue recognizes that indigenous peoples are particularly vulnerable to climate change, both …