Indigenous, Indian, and Aboriginal Law Commons^™

A Hell Of A Complex: The Miscarriages Of The Federal Hydropower Licensing Regime, Derek Red Arrow Frank

American Indian Law Journal

What you are about to read is an illustration of systemic racism. Systemic racism is the current effects of statutes and policies developed through a singular and racially-charged narrative. The current hydropower relicensing regime fails to acknowledge the overarching Treaty-reserved rights of American Indian tribes while statutorily granting state and federal authorities the power to prescribe mandatory conditions on hydropower projects. This fact remains constant whether the hydropower project is within or outside a tribe’s reservation or aboriginal territory. Specifically, the Hells Canyon Complex, which rests along the Snake River, has had and continues to have enormous impacts on fisheries …

Solution Before Pollution: Mining And International Transboundary Rivers In Southeast Alaska, Britany Kee’ Ya Aa. Lindley

American Indian Law Journal

No abstract provided.

Conservation Easements: A Flexible New Tool For Washington Tribes, A Case Study Of The Lower Elwha Klallam Tribe, David P. Papiez

American Indian Law Journal

No abstract provided.

Enhancing Federal-Tribal Coordination Of Invasive Species, Blaine Parker, Chuck Bargeron, Sean Southey, Lori Buchanan, Miles Falck, Chris Fisher, Joe Maroney, Mervin Wright, Gintas Zavadkas

National Invasive Species Council

Invasive species are defined by the United States government to mean “with regard to a particular ecosystem, a non-native organism whose introduction causes or is likely to cause economic or environmental harm, or harm to human, animal, or plant health” (Executive Order [EO] 13751). The ecosystems to which invasive species are introduced or spread are not delimited by jurisdictional boundaries; they intersect with lands managed by federal, tribal, state, territorial, and county governments, as well as properties under private ownership. For this reason, effective coordination and cooperation across jurisdictions is of paramount importance in the prevention, eradication, and control of …

United States V. Osage Wind, Llc, Summer Carmack

Public Land & Resources Law Review

The Osage Nation, as owner of the beneficial interest in its mineral estate, issues federally-approved leases to persons and entities who wish to conduct mineral development on its lands. After an energy-development company, Osage Wind, leased privately-owned surface lands within Tribal reservation boundaries and began to excavate minerals for purposes of constructing a wind farm, the United States brought suit on the Tribe’s behalf. In the ensuing litigation, the Osage Nation insisted that Osage Wind should have obtained a mineral lease from the Tribe before beginning its work. In its decision, the Tenth Circuit applied one of the Indian law …

Constitutional Conflict And The Development Of Canadian Aboriginal Law, Guy Charlton, Xiang Gao

The University of Notre Dame Australia Law Review

This paper argues that aboriginal rights in Canada have been greatly affected by 19 th century governmental and social conflicts within the Canadian colonial state. These conflicts, largely over the ownership of land and regulatory authority between the federal government and the provinces necessarily impacted the First Nations on the ground while affecting how their legal claims were recognized and implemented. In particular they impacted the legal efficacy of treaty rights, the scope of rights recognised by the courts and an expansive legally protected notion of indigenous sovereignty. As a result, the rights now protected under sec. 25 and 35 …

Community Engagement And Social Activism In Legal, Aliza Organick

Faculty Scholarship

Organick encourages new law faculty to reach out to the clinicians on your faculty for support, potential collaborative projects. This benefits students, and lays the foundation for meaningful friendships.

Courts Also Won (Albuquerque) Mayoral Election, Kevin Washburn

Faculty Scholarship

In the 2017 Albuquerque mayoral election, one of the candidates sought to make the election a referendum on the New Mexico judiciary and was soundly defeated. In this respect, in addition to candidate and now Mayor-elect Time Keller, the courts also won the election.

Indigenous Rights In The Trump Era, Tereza M. Szeghi

Biennial Conference: The Social Practice of Human Rights

This paper examines the ways in which the Dakota Access Pipeline and the related protests were divergently covered in mainstream versus alternative news sources and what this divergent coverage suggests about the current status of American Indian affairs and the role of American Indians in the U.S. cultural imaginary. Moreover, the paper will address the status of American Indian tribal sovereignty in the Trump era more broadly, with particular focus on American Indians' treaty-related rights to self-determination in the use of their lands.

An Avoidable Conundrum: How American Indian Legislation Unnecessarily Forces Tribal Governments To Choose Between Cultural Preservation And Women's Vindication, Catherine M. Redlingshafer

Notre Dame Law Review

This Note makes two arguments concerning the state of American Indian legislation, and then proposes an alternative. First, this Note argues that the recently enacted legislation regarding criminal justice in American Indian societies will work to encourage cultural assimilation and result in the loss of tribal traditions and autonomy. In effect, the legislation is putting tribes in an impossible position: it is unfairly coercing them to choose between (1) the preservation of their own culture and customs, and (2) the ability to prosecute those victimizing their members. Second, this Note argues that even if a tribe decides to risk its …

Taxation And Doing Business In Indian Country, Erik M. Jensen

Maine Law Review

Economic development on the lands of the American Indian nations has been spotty at best. Almost everyone knows the great success stories with Indian gaming, which has been furthered by federal legislation, but those economic benefits have not been felt uniformly. Some tribes have prospered because of this peculiarly favored form of enterprise; others have not and, in many cases, probably cannot. Substantial economic development in Indian country will not occur without significant infusions of outside capital, but investment by non-Indian and nongovernmental sources is risky, or is perceived to be so, which leads to the same practical result. This …

The Wastelander Life: Living Before And After The Release Of Daniels V Canada, Signa A. Daum Shanks

Osgoode Hall Law Journal

The difficulties of entering the Canadian legal system for Indigenous peoples often includes the challenge of using the tools that have a history of harming those same peoples in the first place. Such a reality means the pursuit of recognition in Canadian law will not always be a positive experience—even when a decision supposedly represents a ‘win.’ Here, the author considers some of the effects that have developed from the release of Daniels v Canada. As with other Supreme Court of Canada releases, it inspires observations about colonialism, the modern plight of Indigenous peoples, and the rule of law.

United States V. Gila Valley Irrigation District, Ryan L. Hickey

Public Land & Resources Law Review

Attempts to alter water use agreements, especially those spanning back decades or even centuries, elicit intense scrutiny from water rights holders. In United States v. Gila Valley Irrigation Dist., the Ninth Circuit upheld application of a 1935 Decree apportioning water among various regional entities, including two Indian tribes, to bar a mineral company from transferring water rights between properties within the Gila River drainage.

The Inherent Right Of Indigenous Governance, Kent Mcneil

All Papers

I would like to start by acknowledging and thanking the Algonquin Nation, on whose unceded territory we are meeting.

When the Dominion of Canada was created in 1867 by the UK Parliament, the BNA Act gave the Parliament of Canada exclusive jurisdiction over “Indians, and Lands reserved for the Indians”. Parliament used this authority to enact the Indian Act in 1876. That statute gave the Canadian government the power to impose the band council system on First Nations without their consent.

The governance authority of First Nation band councils is therefore delegated authority – it comes from the Indian Act …

Getches-Wilkinson Center Newsletter, Fall 2017, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Getches-Wilkinson Center for Natural Resources, Energy, and the Environment Newsletter (2013-)

No abstract provided.

The Supreme Court's Last 30 Years Of Federal Indian Law: Looking For Equilibrium Or Supremacy?, Alexander Tallchief Skibine

Utah Law Faculty Scholarship

Since 1831, Indian nations have been viewed as Domestic Dependent Nations located within the geographical boundaries of the United States. Although Chief Justice John Marshall acknowledged that Indian nations had a certain amount of sovereignty, the exact extent of such sovereignty as well as the place of tribes within the federal system has remained ill-defined. This Article examines what has been the role of the Supreme Court in integrating Indian nations as the third Sovereign within our federalist system. The Article accomplishes this task by examining the Court’s Indian law record in the last 30 years. The comprehensive survey of …

Agua Caliente Band Of Cahuilla Indians V. Coachella Valley Water Dist., Rebecca Newsom

Public Land & Resources Law Review

In Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., the Ninth Circuit upheld the Tribe’s federal reserved right to the groundwater underlying its reservation. This decision enforces that the courts will not defer to state water law when there is an established federal reserved water right. Further, the Ninth Circuit expressly extended this right to groundwater.

Lewis V. Clarke, Summer L. Carmack

Public Land & Resources Law Review

One manner in which Indian tribes exercise their inherent sovereignty is by asserting sovereign immunity. In Lewis v. Clarke, the Court decided that the sovereign immunity extended to instrumentalities of tribes did not further extend to tribal employees acting within the scope of their employment. The Court acknowledged the concerns of the lower court, namely, the possibility of setting a precedent allowing future plaintiffs to sidestep a tribe’s sovereign immunity by suing a tribal employee in his individual capacity. However, the Supreme Court ultimately felt that the immunity of tribal employees should not exceed the immunity extended to state …

Parchment As Power: The Effects Of Pre-Revolutionary Treaties On Native Americans From The Colonial Period To Present, Katie Wilkinson

The Purdue Historian

In colonial America, there was one resource that settlers were thirsty for and only Native Americans could provide: land. Europeans were interested in gaining possession of Native land via whatever methods would place the fertile soil into their greedy palms the fastest. As a result, they turned to a familiar practice to establish ownership – the written word, more specifically treaties. Unfortunately, the Europeans had fundamentally different thoughts concerning land than the Natives and it resulted in great forfeitures for tribes. While Native Americans were often tricked into land cessions, this was not always the case. Some of the reasons …

Why Indian Country? An Introduction To The Indian Law Landscape (Chapter One In Indian Law And Natural Resources: The Basics And Beyond), Monte T. Mills

Faculty Books & Book Chapters

No abstract provided.