Indigenous, Indian, and Aboriginal Law Commons^™

Yellowstone National Park's Record Of Decision On Bison Management, Lila Bennett

Public Land & Resources Law Review

Bison herds once roamed the American Plains by the millions and were a staple in the lives of Native Americans. By the late 1800’s, bison were nearly extinct due to the westward expansion of European settlers and over hunting. Now, there is a population of merely 30,000 wild bison in North America. Although bison no longer face threats of immediate extinction, wild herds face stark realities of disease, habitat loss, and genetic degradation.

Schutter V. State Board Of Land Commissioners, Gillian P. Ellison

Public Land & Resources Law Review

In Schutter v. State Board of Land Commissioners, the Montana Supreme Court addressed the State’s fiduciary obligation in the context of water rights appurtenant to school trust lands. Central to the Court’s holding was the State’s fiduciary duty in managing lands held in trust for the benefit of the State. By upholding the State’s claim to partial ownership of a water right originating on private land, the Schutter Court underscored the tension between private property rights and the State's trust fiduciary duties.

Flathead-Lolo-Bitterroot Citizen Task Force V. Montana, Sarah J. Leopard

Public Land & Resources Law Review

Flathead-Lolo-Bitterroot Citizen Task Force v. Montana evaluates the efficacy of the proposed 2024 gray wolf floating season in preventing harm to grizzly bears, a protected species in Montana. The Court of Appeals for the Ninth Circuit affirmed the implementation of a “serious questions” test for preliminary injunctions that is specific to Endangered Species Act cases. The Court agreed with the district court’s grant of a preliminary injunction that limited the 2024 floating season temporally, but modified the injunction in two respects, thereby narrowing its application. The Court’s holding signifies the continuation of a preliminary injunction standard that values protections for …

Corner Post V. Board Of Governors Of Federal Reserve System, Alexis Karbowicz

Public Land & Resources Law Review

Corner Post v. Board of Governors of the Federal Reserve System resolved a circuit split on when claims against the federal government “accrue” under 28 U.S.C.A. § 2401(a). The Supreme Court clarified whether plaintiffs must file challenges within six years of a regulation’s enactment or may wait until they are directly affected by an agency action, even if that occurs years later. Examining the case’s factual and procedural background provides insight into the relevant regulatory context. The Court’s analysis offers a detailed interpretation of statutory language and establishes principles of claim accrual, alongside the policy considerations of regulatory finality and …

The Biopiracy Of Traditional Knowledge In United States Patent Law, Hannah Green

Public Land & Resources Law Review

The United States intellectual property (“IP”) system is deeply intertwined with our country’s history and constitution. t is foundational in favoring young American inventors. George Washington signed the first patent act in 1790 in hopes of promoting the innovation and progress of science and useful arts. Yet, our patent system was also built around the Western tradition of individualism and competition, which failed to recognize the communal nature and traditional knowledge of tribal communities. This disparity allows the biopiracy of traditional knowledge to be lawful. This comment will explore the harmful toll that United States patent law has taken on …

A Home Away From Home For Indigenous Environmental Justice, Deborah Mcgregor

Articles & Book Chapters

No abstract provided.

Loosen Up: The Follies Of Strict Construction As Applied To A Statutory Tribal Sovereign Immunity Waiver, Joseph M. Raimondi

St. John's Law Review

(Excerpt)

On February 9, 2020, Brian Coughlin attempted suicide, leading to an eleven-day stint at the hospital. He was experiencing “overwhelming stress, anxiety and lack of hope for a better life.” He had recently filed for bankruptcy, which normally triggers a stay that prevents creditors from engaging in “any act to collect, assess, or recover a claim against the debtor . . . .” However, one of Coughlin’s creditors, associated with a Native American tribe —the Lac Du Flambeau Band of Lake Superior Chippewa Indians (“the Band”)—believed that it did not have to comply with the stay by virtue of …

Tribal Law: It’S Not That Scary, Adam Crepelle

Buffalo Law Review

Tribal law is often presented in a negative light. Indeed, the Supreme Court’s skepticism about tribal law has resulted in severe limitations on tribal jurisdiction. This Article challenges perceptions of tribal law by surveying tribal law. While tribal law does rely on tribal customs, tribal law is largely consistent with mainstream American law. Tribal laws are often modeled on state codes or the Restatement.

This Article contends tribal law mirrors western law for two primary reasons—efficiency and legitimacy. Regarding efficiency, borrowing a western law is easier than creating a law from scratch; plus, many laws are common across cultures. A …

Rwu Law Alumni Newsletter December 2024, Roger Williams University School Of Law, Pbn Connect, Edward Fitzpatrick, Danna Lorch

RWU Law

No abstract provided.

Indigenous Justice Initiatives: A Summary Current To 2024, Kito Romero, Dara Heravi, Karen Drake, Yanika Mullings-Smith

Commissioned Reports, Studies and Public Policy Documents

This resource is intended to provide a guide to Indigenous justice initiatives across what is now known as Canada, based on publicly available information. The guide includes information on independent Indigenous courts that operate under the authority of an Indigenous people and separately from the Canadian legal system, Indigenous Persons Courts that operate within the Canadian legal system yet apply or uphold Indigenous laws, and restorative justice initiatives available to Indigenous peoples. This resource also includes academic literature on Indigenous laws, Indigenous justice models and practices, evaluations of existing Indigenous justice initiatives, and international comparative works. The focus is on …

Recovering Constitutional Identity In Colonial South India: Sedition, Sovereignty, And Small-C Constitutionalism In Pudukkottai, Bharath Gururagavendran

National Law School Journal

Constitutional identity is easiest to identify when it has already been credentialed: by a constitutional text, constituent authorisation, or judicial recognition. What remains visible when those markers are absent? Through a historically grounded study of the ‘Little Kingdom’ of Pudukkottai, a princely state in colonial South India, this article examines whether constitutional identity can be recovered from the small-c life of a polity whose opportunities for formal constitution-making were structurally foreclosed. Pudukkottai had no big-C moment. Its constitutional life, if it had one, must be reconstructed from less authoritative materials. The article argues that the absence of a constitutional text …

Abdication Of Power: Arizona V. Navajo Nation And Judicial Refusal To Enforce The Federal Trust Relationship, Jessica Yin

Washington Law Review

Over 150 years ago, the federal government signed a treaty promising the Navajo people a permanent home within the bounds of their ancestral homeland. To this day, that promise remains unfulfilled because the Navajo people face a severe water access crisis. When the Navajo Nation brought the United States to the Supreme Court to enforce its promise, the Court declined to hold the federal government accountable.

This Comment analyzes the Supreme Court’s decision in Arizona v. Navajo Nation through the lens of the judiciary’s historical approach to the federal trust relationship. The Court has traditionally defined the federal trust relationship …

(Un)Worlding With Karipuna’S Shadowy Alliances: The Mirangã And The Isolados, Hanmin Kin

Tipití: Journal of the Society for the Anthropology of Lowland South America

This ethnographically inspired article investigates the ways in which the Karipuna Indigenous people in Rondônia defend their land in the Western Brazilian Amazon against forces of deforestation and dispossession. I focus on the Karipuna’s plurivalent and collective forest spirits called the mirangã, through life experience accounts of two survivors from the “pre-contact” era who embody the Karipuna-mirangã connection. Through an analysis of the onto-epistemological entanglements in which the mirangã and my interlocutors are situated, I articulate another front of the Karipuna’s multi-faceted resistance: the struggle of worlding vis-à-vis the non-indigenous world. This process also reveals the association (from …

The Akwesasne Black Hole: America’S Hidden Border Crisis, Anthony Puntasecca

University of Miami Inter-American Law Review

No abstract provided.

Gwayak Ateg Onaakonigewi Dibenjigewin: Decolonizing Jurisdiction In Anishinaabe Tribal Courts, Kekek Jason Stark

Faculty Law Review Articles

It is generally understood as a matter of federal Indian law that determinations of tribal law should properly be interpreted by tribal courts. This is because tribal courts do not always adhere to the same legal philosophy as their settler colonial counterparts. Many tribal courts subscribe to traditional law, which is an “essential source” of tribal jurisprudence. Anishinaabe communities have maintained a rich body of traditional tribal law since time immemorial. However, these customary law principles are only recently being included in modern day Anishinaabe tribal court determinations. This article builds upon the Anishinaabe law principles articulated in recent opinions …

Not "Indian" Enough: Freedmen, Jurisdiction, And Equal Protection, Ted Shepherd

Pepperdine Law Review

Beginning in the 17th century, many American Indians owned enslaved African workers. They stopped only at the end of the Civil War, when several Tribal Nations signed treaties with the federal government requiring them to emancipate their enslaved workers. The treaties also required the Nations to enroll these “Freedmen” and their descendants as full Tribal members. The Nations complied for a time, but then withdrew membership from the descendants in the 1970s. In 2017, however, a federal court required the Cherokee Nation to honor its treaty and grant the descendants of Cherokee Freedmen full Tribal membership, which it did. Despite …

Systemic Indigent Defense Litigation: A 2010 Update, Cara H. Drinan

Tennessee Journal of Law and Policy

No abstract provided.

Indigenous Copyright Concepts And Indigenous Data Sovereignty: How Libraries And Archives Can Support It, Rebecca Chapman, Rebecca Plevel

Law Librarian Journal Articles

U.S. copyright law does not account for Indigenous knowledge. These items, such as stories, dances, songs, and oral teachings are data and works authored by a sovereign com- munity, not just individuals. Indigenous data sovereignty provides that data and cultural knowledge are subject to Tribal protections. Tribes have the right as a sovereign nation to govern the collection, ownership, and application of its own data and cultural knowledge. Assimilating Indigenous knowledge into non-Indigenous works is a copyright issue from an Indigenous perspective. Librarians can identify these Indigenous copyright issues to support local Indigenous Peoples and promote efforts toward achieving Indigenous …

The Process Before The Promise: Ensuring Indigenous Recognition From The Chilean Constitution, Michaela Mazzeo

William & Mary Bill of Rights Journal

Part I of this Note provides a background and overview of the relatively recent surge in the constitutionalization of indigenous rights and recognition in Latin America, and the state of constitutional reform in Chile. Part II lays out a theoretical understanding of the powers of a constitution as a mechanism for societal reformation and as a platform for bringing legal claims, as played out in Brazil and Bolivia. Part III demonstrates the ways in which practical manifestation of that theoretical power stops short. More specifically, both intentional and incidental barriers dampen the effectiveness of the constitutional mechanism for ensuring indigenous …

How The Settler State Continues To Dispossess: Infrastructural (Dis)Entitlement On The Critical Minerals Frontier, Dayna Nadine Scott

All Papers

The scramble for critical minerals to fuel the energy transition is driving new extractive frontiers across the globe. In Ontario’s far north, settler state authorities and extractive firms are engaged in coordinated tactics to gain ground amidst a growing polarization in positions of Indigenous leadership. There is both a surging resistance to, and a resigned acceptance of, critical minerals mining by First Nations. Drawing on years of community-engaged research, I detail here the contemporary state tactics of infrastructural (dis)entitlement; infrastructural needs are both denied and fulfilled to differential effect. Infrastructural disentitlement is passive; it is not necessarily deliberate, nor is …