Indigenous, Indian, and Aboriginal Law Commons^™

The Standing Rock Sioux Indians: An Inconvenience For Black Gold, Alina Yohannan

University of Baltimore Journal of Land and Development

The issue of the Native American (“Indian”) tribes’ rights to their lands started with the application of the European doctrine of discovery, continued with series of wars and population decimations, and finished with broken treaties and territorial occupations. After centuries of struggle for land and sovereignty, Indians still fight for their rights to the North American territories.

The lawsuit brought by the Standing Rock Sioux Tribe against the U.S. Army Corps of Engineers (“the Corps”) is the latest and most publicized in recent years. The Tribe’s main concerns are the passing of a major crude-oil pipeline (Dakota Access Pipeline, or …

Tribes And Water In The Colorado River Basin, Colorado River Research Group

Books, Reports, and Studies

4 pages : charts.

The special nature of tribal water rights -- Quantified water rights -- The Colordo mainstream reservations -- Central Arizona tribes -- Upper basin tribes -- Outstanding / unresolved tribal claims -- The path forward.

The Legislative History Of The Mccarran Amendment: An Effort To Determine Whether Congress Intended For State Court Jurisdiction To Extend To Indian Reserved Water Rights, Dylan R. Hedden-Nicely

Articles

The year 1976 marked a sea change in federal policy regarding the treatment of American Indian tribes and their water rights. In that year, the Supreme Court of the United States was called upon to determine the scope of the McCarran Amendment, a rider on a federal appropriations bill that waived the sovereign immunity of the United States in state court general stream adjudications "where it appears that the United States is the owner or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise." The Supreme Court, in what has …

Biagaweit: Securing Water From The Mighty River In The Snake River Basin Adjudication, Jeanette Wolfley

Faculty Scholarship

This symposium article describes the Shoshone and Bannock peoples journey to quantify their water rights in the SRBA. It begins with the Shoshone-Bannock Tribal cultural perspective on water and water rights. It then discusses the concept of tribal homelands and the water required and necessary for sustaining a tribally reserved home as guaranteed in the Fort Bridger Treaty of 1868, including a discussion of the Winters doctrine which affirms the treaty's promises. It concludes with a review of the Fort Hall Indian Water Rights Agreement. 'Biagaweit' is the Shoshone word for the Snake River. The mighty Snake River begins its …

Consult, Consent And Veto: International Norms And Canadian Treaties, Shin Imai

Osgoode Legal Studies Research Paper Series

Large parts of Canada, from Ontario to parts of British Columbia and north to the Northwest Territories, are covered by the “numbered treaties”, signed between First Nations and the Crown between 1871 and 1929. These treaties provide for the creation of small reserves for the Indians, and the “surrender” of the remaining tracts of land to the Crown. The land that is “surrendered” continues to be available for Indigenous hunting, fishing and harvesting activities. However, once the land is “taken up” by the provincial Crown for activities such as mining, lumbering and settlement, the treaty rights to hunt, fish and …

Aboriginal Title And Indigenous Governance: Identifying The Holders Of Rights And Authority, Kent Mcneil

Osgoode Legal Studies Research Paper Series

Aboriginal rights, including Aboriginal title to land, are communal rights that are vested in Indigenous collectivities that are connected to the specific Indigenous groups that occupied and used land prior to European colonization of Canada. Identifying the present-day collectivities that hold these rights is therefore essential. This research paper examines the jurisprudence on this matter in relation to three categories of court decisions: Aboriginal title cases, Aboriginal rights cases apart from title, and duty to consult cases. Analysis of the case law reveals that identification of current rights holders is treated as a matter of fact that depends in part …

Chicago’S Last Unclaimed Indian Territory: A Possible Native American Claim Upon Billy Caldwell’S Land, 50 J. Marshall L. Rev. 91 (2016), Scott Priz

UIC Law Review

No abstract provided.

Adaptive Governance Of Water Resources Shared With Indigenous Peoples: The Role Of Law, Barbara Cosens

Articles

Adaptive governance is an emergent phenomenon resulting from the interaction of locally driven collaborative efforts with a hierarchy of governmental regulation and management and is thought to be capable of navigating social-ecological change as society responds to the effects of climate change. The assertion of Native American water rights on highly developed water systems in North America has triggered governance innovations that resemble certain aspects of adaptive governance, and have emerged to accommodate the need for Indigenous water development and restoration of cultural and ecological resources. Similar innovations are observed in the assertion of Indigenous voices in Australia. This presents …

Traditional Ecological Rulemaking, Anthony Moffa

Faculty Publications

This Article examines the implications of an increased role for Traditional Ecological Knowledge (TEK) in United States agency decisionmaking. Specifically, it contemplates where TEK might substantively and procedurally fit and, most importantly, whether a final agency action based on TEK would survive judicial scrutiny. In the midst of a growing body of scholarship questioning the wisdom of deference to agency expertise9 and the legitimacy of the administrative state writ large,10 this Article argues that there remains an important space in administrative rulemaking for the consideration of ways of understanding that differ from traditional Western norms. TEK can and should fill …

Sacred In The City: The Huron Indian Cemetery And The Preservation Laws, John W. Ragsdale Jr

Faculty Works

The Huron Indian Cemetery sits on a hill above the confluence of the Missouri and Kansas Rivers. It is several acres of predominant green, with grass, mature trees, and modest, weathered grave stones, surrounded by the sterile concrete of a struggling Midwestern city. Desultory businesses, colorless governmental offices, a casino, and strong evidence of poverty and vandalism lap at the shores of the small sanctuary. Yet despite the drab and essential joylessness of the encircling faded modernity, the cemetery holds a surprising sense of peace and even timelessness. The serenity may seem incongruous, not only because of the tawdry surroundings, …

An Argument In Support Of Tax-Free Per-Cap Distribution Payments Derived From Native American Nations Gaming Sources, 37 N. Ill. U. L. Rev. 66 (2016), Arthur Acevedo

UIC Law Open Access Faculty Scholarship

Gaming activities play important social, cultural, and economic roles for many Native American tribes. During the 1970s and 1980s, gaming activities spread throughout the country, and became more accessible to nonnative individuals. This growth in gaming activities drew the attention of state and local officials who sought to limit and regulate Native American gaming. In California v. Cabazon Band of Mission Indians, the State of California, arguing before the Supreme Court, asserted that it could exercise jurisdiction over Native American gaming activities. In a stunning defeat, the Supreme Court ruled against the State of California when it announced its decision …

Indigenous Territorial Rights In The Common Law, Kent Mcneil

Osgoode Legal Studies Research Paper Series

This chapter compares Indigenous territorial rights in the United States, Canada, Australia and New Zealand thematically under four headings: the sources, nature and content, proof, and protection of Indigenous rights. The first two are closely linked, as the nature and content of Indigenous rights are determined largely by their sources. Likewise, proof of Indigenous rights also depends on their sources. The protection they are accorded in any particular nation-state depends mainly on its constitution, with recent additional protection emerging in international law. The major premise of the chapter is that Indigenous rights are territorial, encompassing real property rights and governmental …

Nagpra And Its Limitations: Repatriation Of Indigenous Cultural Heritage, 15 J. Marshall Rev. Intell. Prop. L. 472 (2016), Kevin Ray

UIC Review of Intellectual Property Law

The historical conditions under which indigenous (and specifically Native American) cultural heritage objects have been collected present tremendous difficulties, since collecting efforts were frequently influenced, or even directed, by racist or colonialist ideologies. Recent decades have seen efforts to redress past wrongs, as well as to correct misunderstandings and misrepresentations. The restitution and repatriation processes of the Native American Graves Protection and Repatriation Act of 1990, enacted as human rights legislation, provide powerful, but imperfect tools for the protection of Native American cultural heritage. The challenges are both domestic and international. Recent French auction sales of Hopi, Zuni, and Navajo …

Protecting Tribal Skies: Why Indian Tribes Possess The Sovereign Authority To Regulate Tribal Airspace, William M. Haney

American Indian Law Review

Since the advent of human flight, lawmakers in the United States have struggled to keep pace with advancements in aviation technology. Similarly, many doctrines of federal Indian law that govern the exercise of the sovereign powers of Indian tribes in the United States are based on outmoded conceptions of the capabilities and interests of Indian people and tribal governments. For decades, tribal governments have worked to protect their sovereign interests in tribal territory from the effects of aviation activities that occur within tribal airspace. There has been no exploration of tribal airspace issues in the academic community and limited examination …

Human Trafficking Among Native Americans: How Jurisdictional And Statutory Complexities Present Barriers To Combating Modern-Day Slavery, Maggie Logan

American Indian Law Review

No abstract provided.

Oklahoma Tax Commission V. United States: Death Taxes On Restricted Indian Personalty, Thomas Simmons

Faculty Publications

No abstract provided.

Diversely Native, Bethany Berger

Faculty Articles and Papers

No abstract provided.

Fact Sheet: Potential Transfer Of Garrison Dam/Lake Sakakawea Project Lands, United States Army Corps Of Engineers

US Government Documents Related to Indigenous Nations

This 2016 fact sheet released by the United States (US) Army Corps of Engineers, discusses the potential return of lands within the Fort Berthold Reservation to the Three Affiliated Tribes of the Fort Berthold Reservation. The lands in question are part of 153,000 acres that were taken for the construction and operation of the Garrison Dam. The authority of this return is granted by the Fort Berthold Mineral Restoration Act of 1984 (Public Law 98-602). The fact sheet includes a brief history of the lands in question, the process of the return, and the status of the return.

Indian Act By-Laws: A Viable Means For First Nations To (Re)Assert Control Over Local Matters Now And Not Later, Naiomi Metallic

Articles, Book Chapters, & Popular Press

Section 81 in the Indian Act, RSC 1985, c I-5, contains a broad range of subject matters over which Band Councils may pass by-laws. To date, this provision has been underutilized by most First Nation governments. One of the main reasons for this relates to the fact that, for over a hundred years, the Indian Act gave the federal government the power to disallow any such by-laws and Canada historically took a narrow view of the expanse of the Section 81 by-law powers and exercised its disallowance power broadly. Recent amendments to the Indian Act, however, have repealed this disallowance …

Indigenous Rights, Environmental Rights, Or Stakeholder Engagement? Comparing Ifc And Oecd Approaches To The Implementation Of The Business Responsibility To Respect Human Rights, Sara Seck

Articles, Book Chapters, & Popular Press

The Organisation for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises (OECD MNE Guidelines) and the International Finance Corporation (IFC) Performance Standards on Environmental and Social Sustainability (IFC Performance Standards) are widely viewed as key international standards to which extractive companies operating internationally should comply. Indeed, these standards, together with the United Nations (UN) Guiding Principles on Business and Human Rights (UNGPs), are promoted by Canada in its November 2014 enhanced corporate social responsibility (CSR) strategy for extractive sector companies operating abroad. The strategy states that the Canadian government expects companies operating outside of Canada to “respect human rights …