Indigenous, Indian, and Aboriginal Law Commons^™

Johnson V. M'Intosh, Alexandra Flynn

All Faculty Publications

A title to lands, under grants to private Individuals, made by Indian tribes or Nations northwest of the river Ohio, in 1773 and 1775. The decision of the United States District Court is deemed to be in error. ERROR to the District Court of Illinois. This was an action of ejectment for lands in the State and District of Illinois, claimed by the plaintiffs under a purchase and conveyance from the Piankeshaw Indians, and by the defendant, under a grant from the United States.

Righting The Wrongs Of Native American Removal And Advocating For Tribal Recognition: A Binding Promise, The Trail Of Tears, And The Philosophy Of Restorative Justice, 54 Uic L. Rev. 933 (2021), Maria Conversa

UIC Law Review

No abstract provided.

Fraud Law And Misinfodemics, Wes Henricksen

Faculty Scholarship

No abstract provided.

Unbecoming Adversaries: Natural Resource Federalism In Wyoming, Tara Kathleen Righetti, Robert B. Keiter, Jason Robison, Temple Stoellinger, Sam Kalen

Utah Law Faculty Scholarship

Wyoming’s unique cultural and physical landscape fostered dynamic federalism relationships that have oscillated between adversarial and cooperative. Too often, though, the State and its federal and tribal counterparts have found themselves in the role of unbecoming adversaries. As current and former natural resources faculty members at the University of Wyoming (UW) College of Law, we are privileged to offer a retrospective on this subject upon the law school’s centennial. In 2021, the State is facing new and daunting challenges that are straining its core industries and budget, including economic changes associated with the COVID-19 global pandemic and rapidly transforming energy …

Bridges To A New Era: A Report On The Past, Present, And Potential Future Of Tribal Co-Management On Federal Public Lands, Monte Mills, Martin Nie

Articles

Deep ancestral and traditional connections tie many Native Nations to the federal government’s public lands. The removal of these lands from indigenous control, their acquisition by the federal government, and the federal government’s approach to their management are largely premised upon the erasure or marginalization of those connections. Both physically and legally, Indian tribes have been removed from the landscapes they occupied since time immemorial. Rather than centering, honoring, and using those connections, the current discussion of tribal co-management of federal public lands is mostly bereft of this full legal and historical context.

Compounding these limitations is the considerable discretion …

Trust Betrayed: The Reluctance To Recognize Judicially Enforceable Trust Obligations Under The Indian Health Care Improvement Act (Ihcia), Lauren E. Schneider

Loyola University Chicago Law Journal

The federal trust doctrine developed out of the legal relationship between European sovereigns--and later, the United States government--and American Indian tribes. By signing treaties with Indian tribes, the settler governments entered into an ongoing relationship with sovereign tribal governments. The United States government has a duty to fulfill the promises inherent in these treaties, including the provision of such services as health care to Indian tribes. The trust doctrine embodies these obligations. When Congress legislates with respect to American Indians and Indian tribes for the provision of services, such as the Indian Health Care Improvement Act of 1976 (IHCIA), …

The Quotidian And Constitutive Practice Of Police Brutality Against Indigenous People, Elaine Craig

Articles, Book Chapters, & Popular Press

In Settler Colonialism, Policing and Racial Terror: The Police Shooting of Loreal Tsingine Sherene Razack gives voice to the settler colonial violence perpetrated against Loreal Tsingine, a 27-year-old Navajo women who was shot and killed by Austin Shipley. Shipley, a white male police officer, claimed he was trying to apprehend her for alleged shoplifting. The article, which is brilliantly and compellingly written (as is typical of all of Professor Razack’s work) makes several claims. Most centrally, however, she asserts that racial terror – a violence done at both structural and individual levels – is at the very heart of the …

The Resilience Of Métis Title: Rejecting Assumptions Of Extinguishment, Adam Gaudry, Karen Drake

Articles & Book Chapters

For many years, the Crown disputed Métis title claims by contending that any previously existing Métis rights, including title, had been extinguished.We argue, however, that this is not the case in at least some areas of the Métis homeland.In this chapter, we review the three means by which Aboriginal rights can be extinguished in Canadian law: by surrender, by legislation prior to 17 April 1982, and by constitutional amendment.This chapter builds on our previous work,in which we argue that historical Métis land use patterns can satisfy the test for Aboriginal title. The relevant case law here is Tsilhqot'in Nation v …

R V Sparrow, Kent Mcneil

Articles & Book Chapters

On appeal from the Supreme Court of Canada.

In 1984, Ronald Sparrow was charged under the federal Fisheries Act with fishing in the Fraser River in British Columbia with a drift net longer than permitted by the Musqueam First Nation’s food fishing licence. He admitted to fishing with such a net, but raised s 35(1) of the Constitution Act, 1982, as a defence. As a member of the Musqueam Nation, he claimed that he has an Aboriginal right, protected by that subsection, to fish for food, and that the restriction on net length interferes with this right and is …

Extracting Indigenous Jurisdiction On Private Land: The Duty To Consult And Indigenous Relations With Place In Canadian Law, Estair Van Wagner

Articles & Book Chapters

Indigenous relations with land are grounded in place-based legal orders which have been regulating the territories now making up Canada for millennia (Borrows 2010, 2018; McGregor 2010). Judicial consideration of Indigenous relations with place has focused on the duty to consult and accommodate with respect to ‘Crown land’ – lands for which federal and provincial governments are the deemed owners. This emphasis on Crown lands is logical – 89 per cent of land in Canada is held by either the federal or provincial Crown (Neimanis 2013). Indigenous claims often expressly exclude private land, wary of courts’ willingness to unsettle third-party …

Icwa’S Irony, Marcia A. Yablon-Zug

Faculty Publications

The Indian Child Welfare Act (ICWA) is a federal statute that protects Indian children by keeping them connected to their families and culture. The Act’s provisions include support for family reunification, kinship care preferences, cultural competency considerations and community involvement. These provisions parallel national child welfare policies. Nevertheless, the Act is relentlessly attacked as a law that singles out Indian children for unique and harmful treatment. This is untrue but, ironically, it will be if challenges to the ICWA are successful. To prevent this from occurring, the defense of the Act needs to change. For too long, this defense has …

Jurisprudence And Recommendations For Tribal Court Authority Due To Imposition Of U.S. Limitations, Angelique Eaglewoman

Mitchell Hamline Law Review

No abstract provided.

Permanent Homelands Through Treaties With The United States: Restoring Faith In The Tribal Nation-U.S. Relationship In Light Of The Mcgirt Decision, Angelique Eaglewoman

Mitchell Hamline Law Review

No abstract provided.

"It Is Not Necessary For Eagles To Be Crows": Book Review, Neil Fulton

Faculty Publications

No abstract provided.

Notes From The Periphery: Finding More Than (Non)Ownership In Property Law?, Estair Van Wagner

Articles & Book Chapters

Property law structures the way we make decisions about how we live together and with the world around us. In doing so, it shapes, but is also shaped by, our relationships with the places we inhabit and encounter. Traditionally, non-owners are defined by their distance and exclusion from the primary legal relationship and their lack of enforceable interests. Yet, land use conflicts continue to arise because people routinely assert relationships with land and resources that they are not formally recognised as owning but with which they are deeply entangled. This chapter touches briefly on three examples: the relations of Indigenous …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Mcgirt Policy Briefs: Cultural Resources, Monte Mills

Faculty Journal Articles & Other Writings

On July 9, 2020, the United States Supreme Court issued its decision in McGirt v. Oklahoma. Although the only actual effect of that decision was on Mr. McGirt’s state court criminal conviction, rendering it invalid in light of the continuing existence of the Muscogee (Creek) Nation’s reservation, the implications of McGirt reverberated throughout Oklahoma and the nation. By rejecting Oklahoma’s arguments that the march to statehood had resulted in the implicit disestablishment of the Creek’s reservation (and, by analogy, those of the neighboring and similarly situated Cherokee, Chickasaw, Choctaw, and Seminole Nations), Justice Gorsuch’s opinion on behalf of the Court’s …

Indigenous Peoples And Diplomacy On The World Stage, Kristen Carpenter, Alexey Tsykarev

Publications

No abstract provided.

R V. Turtle: Substantive Equality Touches Down In Treaty 5 Territory, Sonia Lawrence, Debra Parkes

All Faculty Publications

Court comes to Pikangikum First Nation through the air. Judges, Crown attorneys, and defence lawyers fly into this Anishinaabe community, located 229 kilometres north of Kenora, Ontario, to hear bail, trial, and sentencing matters involving members of the community. And then they fly out. Many of those provincial court proceedings involve sentencing members of the community to jail in Kenora or to a penitentiary even further away. We suspect that s. 15 of the Charter is rarely discussed in the Pikangikum courtroom (which is sometimes a room in the business development centre and sometimes the Chinese restaurant), a reality that …

Nature's Rights, Christiana Ochoa

Articles by Maurer Faculty

Do forests and rivers possess standing to sue? Do mountain ranges have substantive rights? A recent issue of The Judges’ Journal, a preeminent publication for American judges, alerts the bench, bar, and policymakers to the rapidly emerging “rights of nature,” predicting that state and federal courts will increasingly see claims asserting such rights. Within the United States, Tribal law has begun to legally recognize the rights of rivers, mountains, and other natural features. Several municipalities across the United States have also acted to recognize the rights of nature. United States courts have not yet addressed the issue, though in 2017, …