Indigenous, Indian, and Aboriginal Law Commons^™

Closing The Circle: Tribal Implementation Of The Superfund Program In The Reservation Environment, Richard A. Du Bey, James M. Grijalva

Journal of Natural Resources & Environmental Law

No abstract provided.

Anilca Under Attack: Will The Right To Travel Wreak Havoc With Subsistence Rights?, Kathy A. Gudgell

Journal of Natural Resources & Environmental Law

No abstract provided.

Jurisdiction Over Water Quality On Native American Lands, Charlotte Uram, Mary J. Decker

Journal of Natural Resources & Environmental Law

No abstract provided.

"Te Pee" As In Taxpayer: Tribal Severance Taxes--Canvassing The Reservation-Do Tribes Have The Power To Impose Severance Taxes On Minerals Extracted On Non-Indian Fee Lands Within The Reservation?, Michael Layne Carrico

Journal of Natural Resources & Environmental Law

No abstract provided.

Preview—United States V. Cooley: What Will Happen To The Thinnest Blue Line?, Jo J. Phippin

Public Land & Resources Law Review

The Supreme Court of the United States ("Supreme Court") will hear oral arguments in this matter on Tuesday, March 23, 2021. This case presents the narrow issue of whether a tribal police officer has the authority to investigate and detain a non-Indian on a public right-of-way within a reservation for a suspected violation of state or federal law. The lower courts, holding that tribes have no such authority, granted James Cooley’s motion to suppress evidence. The Supreme Court must decide whether the lower courts erred in so deciding. While the issue before the Supreme Court is itself narrow, it has …

“Magic Words” And Original Understanding: An Amplified Clear Statement Rule To Abrogate Tribal Sovereign Immunity, Justin W. Aimonetti

Pepperdine Law Review

The Indian plenary power doctrine—an invention of the late nineteenth-century Supreme Court—grants Congress exclusive authority to legislate with respect to Indian tribes, including the ability to abrogate tribal sovereign immunity. Under current doctrine, Congress must “unequivocally express” its intent to abrogate the sovereign immunity of Indian tribes with “explicit legislation.” Circuit courts tasked with applying this standard have split on the level of textual specificity required to strip tribes of their immunity. Employing the tools of statutory construction, courts are divided over whether the term ‘domestic government,’ as found in Section 106 of the Bankruptcy Code, unequivocally covers Indian tribes. …

Changing Consultation, Elizabeth Kronk Warner, Kathy Lynn, Kyle Whyte

Tribal Consultation Project Work

Examples abound of both historic and modern situations where the federal government and tribes failed to engage in effective consultation. Yet, numerous reasons exist—such as effective management of natural resources and the negative impacts of climate change—for tribes and the federal government to engage in effective consultation. Effective consultation can be met through strong government-to-government relationships between Indian tribes and federal agencies and should be based on respect, mutual understanding, and common goals. This can be accomplished through interactions that will enhance consultation and provide other pathways to achieving a strong government-to-government relationship. To date, however, many within Indian country …

Changing Consultation, Elizabeth Kronk Warner, Kathy Lynn, Kyle Whyte

Tribal Consultation Database

Examples abound of both historic and modern situations where the federal government and tribes failed to engage in effective consultation. Yet, numerous reasons exist—such as effective management of natural resources and the negative impacts of climate change—for tribes and the federal government to engage in effective consultation. Effective consultation can be met through strong government-to-government relationships between Indian tribes and federal agencies and should be based on respect, mutual understanding, and common goals. This can be accomplished through interactions that will enhance consultation and provide other pathways to achieving a strong government-to-government relationship. To date, however, many within Indian country …

Kū Kia‘I Mauna: Protecting Indigenous Religious Rights, Joshua Rosenberg

Washington Law Review

Courts historically side with private interests at the expense of Indigenous religious rights. Continuing this trend, the Hawai‘i State Supreme Court allowed the Thirty- Meter-Telescope to be built atop Maunakea, a mountain sacred to Native Hawaiians. This decision led to a mass protest that was organized by Native Hawaiian rights advocates and community members. However, notwithstanding the mountain’s religious and cultural significance, Indigenous plaintiffs could not prevent construction of the telescope on Maunakea.

Unlike most First Amendment rights, religious Free Exercise Clause claims are not generally subject to strict constitutional scrutiny. Congress has mandated the application of strict scrutiny to …

Let Indians Decide: How Restricting Border Passage By Blood Quantum Infringes On Tribal Sovereignty, Rebekah Ross

Washington Law Review

American immigration laws have been explicitly racial throughout most of the country’s history. For decades, only White foreign nationals could become naturalized citizens. All racial criteria have since vanished from the Immigration and Nationality Act (INA)—all but one. Section 289 of the INA allows “American Indians born in Canada” to freely cross into the United States if they possess at least 50% blood “of the American Indian race.” Such American Indians cannot be prohibited from entering the United States and can obtain lawful permanent residence status—if they meet the blood quantum requirement. Such racialized immigration controls arbitrarily restrict cross-border Indigenous …

Indigenous Environmental Justice And Sustainability, Deborah Mcgregor

Articles & Book Chapters

This chapter offers an alternative vision for sustainable futures involving self-determined Indigenous environmental justice (EJ). It builds upon a distinct understanding of Indigenous EJ which asserts that the components necessary for Indigenous EJ are Indigenous knowledge systems, legal orders, and conceptions of justice that have existed for thousands of years.1 This contribution will also offer preliminary thoughts on the need to decolonize internationally adopted conceptions of sustainable development expressed more recently through the post-2015 United Nations sustainable development agenda. Indigenous environmental injustice is very much an outcome of “unsustainable” and detrimental “development,” as well as gross violations of human and …

Indigenous Law And The Common Law, Kent Mcneil

Articles & Book Chapters

Indigenous law does not need to be incorporated into Canadian law by treaty, statute, or judicial pronouncement to be part of the domestic law of Canada. Indigenous law exists and is followed in Indigenous communities. It is living law that predated European colonization and has continued up to the present. However, Canadian judges generally are not familiar with it in the way they are with the common law and civil law. Consequently, when relied upon in court evidence of it has to be presented by the testimony of experts, such as Elders and Indigenous knowledge keepers. This is simply a …

Law Library Blog (March 2021): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Calf Boss Ribs V. Blackfeet Tribal Court, 20-Ap-03 (Blkft. Tr. Ct. App., Feb. 16, 2021), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court dismissed a motion for reconsideration of a lower court decision when new evidence was discovered by the appellant. The Court noted that the evidence must be presented to the lower court. The Appellate Court of the Blackfeet Nation will not overturn the Tribal Court’s judgement based upon factual findings unless a review of the entire record shows that such judgement was not supported by substantial evidence. Motion for reconsideration is dismissed. The case was remanded to the lower court for a new hearing and the Court advised the lower court to …

The Wall That Trumps Environmental Law: A Review Of The Environmental And Legal Implications Of The U.S.-Mexico Border Wall, Olivia Merritt

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Cle Working Paper No.1/2021--Grassroots And Litigation-Based Approaches To Advancing Indigenous Rights: Lessons From Extractive Industry Resistance In Mesoamerica, Justin Wiebe

Centre for Law and the Environment

Indigenous peoples are frequently recognized as excellent stewards of their traditional territories. These territories, which often exhibit extraordinary levels of biodiversity, face disproportionate and growing threats from extractive industry. In opposing these threats, Indigenous peoples increasingly rely on internationally-defined Indigenous rights, including those set out in UNDRIP and ILO Convention 169. It is uncertain, however, how these rights are most effectively advanced. In this paper, I tease out strategies — both grassroots-based and litigation-based — that show promise in this regard. Drawing on Waorani resistance to an oil auction in Ecuador and Indigenous resistance to a large-scale mining project in …

Predicting Supreme Court Behavior In Indian Law Cases, Grant Christensen

Michigan Journal of Race and Law

This piece builds upon Matthew Fletcher’s call for additional empirical work in Indian law by creating a new dataset of Indian law opinions. The piece takes every Indian law case decided by the Supreme Court from the beginning of the Warren Court until the end of the 2019-2020 term. The scholarship first produces an Indian law scorecard that measures how often each Justice voted for the “pro- Indian” outcome. It then compares those results to the Justice’s political ideology to suggest that while there is a general trend that a more “liberal” Justice is more likely to favor the pro-Indian …

Indigenizing Grand Canyon, Jason Anthony Robison

Utah Law Review

The magical place commonly called the “Grand Canyon” is Native space. Eleven tribes hold traditional connections to the canyon according to the National Park Service. This Article is about relationships between these tribes and the agency—past, present, and future. Grand Canyon National Park’s 2019 centennial afforded a valuable opportunity to reflect on these relationships and to envision what they might become. A reconception of the relationships has begun in recent decades that evidences a shift across the National Park System as a whole. This reconception should continue. Drawing on the tribal vision for Bears Ears National Monument, this Article advocates …

Living In Two Worlds, Elizabeth Kronk Warner

Utah Law Faculty Scholarship

Anti-racism calls us to work toward ending racial hatred, bias, systemic racism, and the oppression of marginalized groups. For many of us working in higher education leadership, this means that we are actively creating space for marginalized voices both in classrooms and through research. But who should be included is not always a question with a clear answer. Additionally, because of the complexity of identity, not all members of a marginalized community may express themselves in a monothetic way. This essay examines such a group possessing a complex identity – Indigenous people, from my personal lived experience. The essay explores …

A Familiar Crossroads: Mcgirt V. Oklahoma And The Future Of The Federal Indian Law Canon, Dylan R. Hedden-Nicely

Articles

Federal Indian law forms part of the bedrock of American jurisprudence. Indeed, critical parts of the pre-civil war constitutional canon were defined in Federal Indian law cases that simultaneously provided legal justification for American westward expansion onto unceded Indian lands. As a result, Federal Indian law makes up an inextricable part of American rule of law. Despite its importance, Federal Indian law follows a long and circuitous road that requires "wander[ing] the maze of Indian statutes and case law tracing back [over] 100 years." That road has long oscillated between two poles, with the Supreme Court sometimes applying foundation principles …