Indigenous, Indian, and Aboriginal Law Commons^™

How Icebreaking Governance Interacts With Inuit Rights And Livelihoods In Nunavut: A Policy Review, Breanna Bishop, Jade Owen, Lisette Wilson, Tagalik Eccles, Aldo Chircop, Lucia Fanning

Articles, Book Chapters, & Popular Press

Sea ice is a contested space when it comes to navigation in ice-covered regions. For Inuit in Nunavut, Canada, sea ice is an integral platform of coastal connectivity, allowing access to areas of subsistence and cultural value. For vessels transiting Arctic waters, sea ice poses potential risks to vessel, crew, and passenger safety consequently, icebreaking is considered an essential service. Yet, many communities in Nunavut have described icebreaking as having, or potentially having significant negative impacts on community and ecological wellbeing. Several policies regulate and provide guidance to icebreakers operating in ice-covered waters. With anticipated increases to icebreaking demand in …

Judicial Workbook On Bill C-92 — An Act Respecting First Nations, Inuit And Métis Children, Youth And Families, Hadley Friedland, Naiomi Metallic, Koren Lightning-Earle

Articles, Book Chapters, & Popular Press

Objective: Based on the purpose, history, textual wording and relevant interpretative principles, these are the approaches to the provisions of the Act that we believe will best achieve its purpose, which Canada has identified as “to protect and ensure the well-being of Indigenous children, families and communities by promoting culturally sensitive child welfare services, with the goal of putting an end to the overrepresentation of Indigenous children in child and family services systems."

Human Rights At The Ocean-Climate Nexus: Opening Doors For The Participation Of Indigenous Peoples, Children And Youth, And Gender Diversity, Unwana Udo, Tahnee Prior, Sara L. Seck

Articles, Book Chapters, & Popular Press

No abstract provided.

Indigenous Rights And Interests In A Changing Arctic Ocean: Canadian And Russian Experiences And Challenges, Anna Sharapova, Sara L. Seck, Sarah L. Macleod, Olga Koubrak

Articles, Book Chapters, & Popular Press

The Arctic has been home to Indigenous peoples since long before the international legal system of sovereign states came into existence. International law has increasingly recognized the rights of Indigenous peoples, who also have status as Permanent Participants in the Arctic Council. In northern Canada, the majority of those who live in the Arctic are recognized as Indigenous. However, in northern Russia, a much smaller percentage of the population is identified as Indigenous, as legal recognition is only accorded to groups with a small population size. This article will compare Russian and Canadian approaches to recognition of Indigenous peoples and …

Aboriginal Rights, Legislative Reconciliation And Constitutionalism, Naiomi Metallic

Articles, Book Chapters, & Popular Press

This paper sketches out the idea of ‘legislative reconciliation’ – governments in Canada using their legislative powers to recognize and protect the inherent rights of Indigenous peoples. Legislative reconciliation is needed because the existing approaches to the implementation of inherent rights—negotiation and constitutional litigation—have been insufficient on their own to bring about a mutually respectful relationship between Indigenous and non-Indigenous peoples. Despite the entrenchment of s 35, state governments have not seen themselves as having a role in its implementation in the same way they do for Charter rights. In particular, Canadian governments have not felt compelled to legislate to …

Breathing Life Into Our Living Tree And Strengthening Our Constitutional Roots: The Promise Of The United Nations Declaration On The Rights Of Indigenous Peoples Act, Naiomi Metallic

Articles, Book Chapters, & Popular Press

In 2015, the Truth and Reconciliation Commission of Canada (“TRC”) suggested that, despite over 30 years of interpretation in the courts, section 35 of the Constitution Act, 1982, which “recognizes and affirms” the Aboriginal and treaty rights of the Aboriginal peoples of Canada, is not achieving meaningful reconciliation. The TRC defined reconciliation as being about “establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country.” According to the TRC, the “reconciliation vision that lies behind Section 35 should not be seen as a means to subjugate Aboriginal peoples to an absolute sovereign Crown,” implying this …

Preemption, Commandeering, And The Indian Child Welfare Act, Matthew L.M. Fletcher, Randall F. Khalil

Articles

This year (2022), the Supreme Court agreed to review wide-ranging constitutional challenges to the Indian Child Welfare Act (ICWA) brought by the State of Texas and three non-Indian foster families in the October 2022 Term. The Fifth Circuit, sitting en banc, held that certain provisions of ICWA violated the anti-commandeering principle implied in the Tenth Amendment and the equal protection component of the Fifth Amendment’s Due Process Clause.

We argue that the anti-commandeering challenges against ICWA are unfounded because all provisions of ICWA provide a set of legal standards to be applied in states which validly and expressly preempt state …

From Zero-Sum To Economic Partners: Reframing State Tax Policies In Indian Country In The Post-Covid Economy, Pippa Browde

Faculty Law Review Articles

The disparate impact COVID-19 has had on Indian Country
reveals problems centuries in the making from the legacy of
colonialism. One of those problems is state encroachment in
Indian Country, including attempts to assert taxing authority
within Indian Country. The issue of the reaches of state taxing
authority in Indian Country has resulted in law that is both
uncertain and highly complex, chilling both outside investment
and economic development for tribes.
As the United States emerges from COVID-19, to focus only on the
toll exacted on tribes and their peoples ignores the tremendous
opportunities for states to right these historical …

Storytelling And Truth-Telling: Personal Reflections On The Native American Experience In Law Schools, Angelique Eaglewoman, Dominic J. Terry, Lani Petrulo, Dr. Gavin Clarkson, Angela Levasseur, Leah R. Sixkiller, Jack Rice

Mitchell Hamline Law Review

No abstract provided.

How To Be Biased In The Classroom: Kwayeskastasowin - Setting Things Right?, Jaime M.N. Lavallee

Mitchell Hamline Law Review

No abstract provided.

Some Reflections Of A Métis Law Student And Assistant Professor On Indigenous Legal Education In Canada, Scott Franks

Mitchell Hamline Law Review

No abstract provided.

The Legal Relations Of ‘Private’ Forests: Making And Unmaking Private Forest Lands On Vancouver Island, Estair Van Wagner

All Papers

While the vast majority of forestlands in Canada are considered ‘Crown land’, there are key areas of private forestland. On private land the incidents of fee simple ownership mean the owner emerges as land use decision maker – the “agenda setter” for the land. Yet a richer set of legal relations exists in these forests.

Indigenous legal orders derived from an enduring relationship with the land and place also govern forestlands. Using the case of the Esquimalt and Nanaimo Railway lands in British Columbia, this article explores the intersection between historical and contemporary human-forest relations upheld by Anglo-Canadian law and …

The (Un)Just Use Of Transition Minerals: How Efforts To Achieve A Low-Carbon Economy Continue To Violate Indigenous Rights, Kathleen Finn, Christina A.W. Stanton

Publications

No abstract provided.

Colonial Legislation Affecting Indigenous Peoples Of Southern New England As Organized By State, James D. Diamond

Roger Williams University Law Review

No abstract provided.

Mohegan Women, The Mohegan Church, And The Lasting Of The Mohegan Nation, Bethany R. Berger, Chloe Scherpa

Roger Williams University Law Review

No abstract provided.

An Uncomfortable Truth: Law As A Weapon Of Oppression Of The Indigenous Peoples Of Southern New England, James D. Diamond

Roger Williams University Law Review

No abstract provided.

The Continued Impact Of Carcieri On The Restoration Of Tribal Homelands: In New England And Beyond, Bethany Sullivan, Jennifer Turner

Roger Williams University Law Review

No abstract provided.

Of Reservation Boundary Lines And Judicial Battle Lines, Part 1 - Reservation Diminishment/Disestablishment Cases From 1962 To 1975: The Indian Law Justice Files, Episode 1, John P. Lavelle

Faculty Scholarship

This Article is the first of a two-part investigation into the Indian law doctrine of reservation diminishment/disestablishment, examining Supreme Court decisions in this area in light of insights gathered from the collected papers of individual Justices archived at the Library of Congress and various university libraries. The Article first addresses Seymour v. Superintendent (1962) and Mattz v. Arnett (1973), observing that these first two diminishment/disestablishment cases are modern applications of basic, longstanding principles of Indian law which are highly protective of Indigenous people’s rights and tribal sovereignty. The Article then examines in detail DeCoteau v. District County Court, the anomalous …

A Comparative Analysis Of Repatriation Of Native American Artifacts And Human Remains Laws In Montana, Usa And Alberta Canada, Helen Cryer

Graduate Student Theses, Dissertations, & Professional Papers

ABSTRACT: Native American and Indigenous communities across the United States and Canada have lost an extensive amount of human remains and sacred artifacts to non-Native people exhuming Native American and Indigenous burial sites that may have been dug up for personal gain, stolen, placed in museums, or left in the hands of non-Native collectors. The repatriation of human remains and sacred artifacts to Native nations can be a lengthy, political, and challenging process yet it is worth the effort for Native people. Native American advocacy and evolving public sentiment toward Native people have led to legislative advancements in the United …

A 385-Year Experiment To Erase A People: Intergenerational Acts Of Genocide Against The Narragansett Indian Tribe By The United States Of America And The State Of Rhode Island, Taylor A. Dumpson, Afro-Indigenous; Black, Narragansett, Nanticoke, And Mohawk Ancestry

Tribal Law Journal

Since Roger Williams’ arrival in Narragansett Territory in 1636, and his subsequent settlement of the Providence Plantations, the Narragansett Indian Tribe--the Indigenous people to this land--have faced a series of intergenerational atrocities, including attempted genocides. For generations, these heinous wrongs have not been corrected by state or federal courts, which have often compounded the harms against the Narragansett people. Although the American legal system has played a role in perpetuating the intergenerational harms experienced by the Narragansett people, these institutions also have the opportunity to be a part of the solution. The Article examines the existing domestic legal framework for …