Indigenous, Indian, and Aboriginal Law Commons^™

Res Extra Commercium And The Barriers Faced When Seeking The Repatriation And Return Of Potent Cultural Objects: A Transsystemic Critical Post-Colonial Approach, Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

The repatriation and return of objects of cultural value are often linked to decolonization projects and efforts to repair past wrongs suffered as a result of colonialism. Yet significant barriers hinder these efforts. These barriers primarily take the shape of time limitations, diverging conceptions of property and ownership, the high costs involved, and the domestic export and cultural heritage laws of both the source country and the destination country. I argue that these barriers are relics of colonialism that replicate and perpetuate the continued imposition of Eurocentric and Western legal notions and values on subaltern source countries and source indigenous …

Land Claim Settlement In Canadian Arctic: Pragmatism And Instrumentalism At Work, Diana Ginn

Articles, Book Chapters, & Popular Press

In Canada, comprehensive land claims based on Aboriginal title can be pursued through either litigation or negotiation. Generally, the relationship between litigation and negotiation of these claims is understood as one where the Supreme Court of Canada initially prodded the Canadian state to action, and then in a series of decisions developed the legal parameters within which the political realities of negotiation occur. Thus, settlement tends to follow and be shaped by the contours of the legal doctrine. However, settlement of land claims in Canada’s Arctic moved ahead of the case law in two key areas, as manifested in: (a) …

The Broad Implications Of The First Nation Caring Society Decision: Dealing A Death-Blow To The Current System Of Program Delivery On-Reserve & Clearing The Path To Self-Government, Naiomi Metallic

Articles, Book Chapters, & Popular Press

On January 26, 2016, the Canadian Human Rights Tribunal (the “Tribunal”) released a watershed decision in a complaint spearheaded by the First Nations Child and Family Caring Society of Canada, its Executive Director, Dr. Cindy Blackstock, and the Assembly of First Nations (the “Caring Society” decision). The complaint alleged that Canada, through its Department of Indigenous and Northern Affairs (“INAC” or the “Department”), discriminates against First Nations children and families in the provision of child welfare services on reserve. In its decision, the Tribunal found that INAC’s design, management and control of child welfare services on reserve, along with its …

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 …

Commentary On The Emerging Constitutional Indigenous Peoples Land Rights In Tanzania, Daniel Halberstam

Articles

The pastoralists and hunter-gatherer indigenous peoples in Tanzania continue lobbying their recognition as such and protection of their land rights. This article discusses the extent to which the indigenous peoples are legally recognized and the state of their security of land tenure. With the hindsight of the UN Declaration on the Rights of Indigenous Peoples 2007 and the 2003 Report of the African Commission Working Group of Experts on Indigenous Population, this article probes the emerging indigenous land rights within the broader understating of the minority rights in the Draft Constitution of Tanzania 2014 as well as the Draft Policy …

Sovereignty And Indigenous Peoples In North America, Kent Mcneil

Articles & Book Chapters

This article examines the concept of sovereignty and its application in the context of European colonization of North America. It seeks to define sovereignty so as to avoid Eurocentric notions that denied sovereignty to Indigenous peoples. The article does this by distinguishing between defacto and de jure sovereignty: the former depends on actual possession and control of a territory, whereas the latter depends on the application of a particular legal system. Unlike de facto sovereignty, which is empirical, de jure sovereignty depends on a choice of law. Because more than one legal system can be applied to territories occupied by …

Why Coywolf Goes To Court, Signa A. Daum Shanks

Articles & Book Chapters

This article is an effort influenced by previous works considered part of "trickster" discourse. But unlike other trickster stories meant to illustrate First Nations’ contents and processes, this presentation creates a Métis-specific example of trickster methodology and knowledge. Similar to the historic role Métis individuals have had in Canadian history, this effort contains a type of "translator" system within its citations so that the main story parallels information about trends in Canadian legal analysis. By having this format, it is hoped that those less familiar with Métis courtroom struggles will gain insight into how the pursuit of Métis constitutionalism both …

Birthright Citizenship On Trial: Elk V. Wilkins And United States V. Wong Kim Ark, Bethany Berger

Faculty Articles and Papers

In the summer of 2015, the majority of Republican candidates for president announced their opposition to birthright citizenship. The constitutional dimensions of that right revolve around two cases decided at the end of the nineteenth century, Elk v. Wilkins (1884) and United States v. Wong Kim Ark (1898). The first held that an American Indian man born in the United States was not a citizen under the Fourteenth Amendment; the second, that a Chinese American man born in the United States was indeed a citizen under the amendment. This Article juxtaposes the history of these decisions. By showing the distinctive …

From Dysfunction And Polarization To Legislation: Native American Religious Freedom Rights And Minnesota Autopsy Law, Gail T. Kulick, Tadd M. Johnson, Rebecca St. George, Emily Segar-Johnson

Mitchell Hamline Law Review

No abstract provided.

Untangling The Web: Juvenile Justice In Indian Country, Addie C. Rolnick

Scholarly Works

The juvenile justice system in Indian country is broken. Native youth are vulnerable and traumatized. They become involved in the system at high rates, and they are more likely than other youth to be incarcerated and less likely to receive necessary health, mental-health, and education services. Congressional leaders and the Obama administration have made the needs of Indian country, especially improvement of tribal justice systems, an area of focus in recent years. The release of two major reports—one from a task force convened by the Attorney General to study violence and trauma among Native youth and the other from a …

Indigenous Law And Aboriginal Title, Kent Mcneil

All Papers

This paper discusses the relevance of Indigenous law to Aboriginal title in Canada, as revealed in three leading Supreme Court decisions: Delgamuukw v. British Columbia (1997), R. v. Marshall; R. v. Bernard (2005), and Tsilhqot’in Nation v. British Columbia (2014). It concludes that Indigenous law relates to Aboriginal title in two ways: it is part of the evidence that can be relied upon to establish the exclusive occupation necessary for title at the time of Crown assertion of sovereignty, and it continues thereafter to govern the communal land rights of the Aboriginal titleholders. Moreover, the content of Indigenous law is …

It’S Rooted In The Land: How Managing Natural Resources Leads Native American Tribes To Sovereignty, Nicky Ouellet

Graduate Student Theses, Dissertations, & Professional Papers

Tribal management of land and natural resources within the boundaries of Native American reservations is often superseded by state and federal policy. But control of land and resources is, ultimately, what makes a nation a nation. The three stories in this portfolio depict tribes establishing control of natural resources to various degrees of success. Chapter one is a narrative outlining the stories, my reportage and plans for publication. Chapter two: Members of the Northern Cheyenne seek to establish a medical marijuana program after the federal government relaxed enforcement of cannabis bans. Chapter three: An activist on the Fort Berthold reservation …

Redskins: The Property Right To Racism, M. Alexander Pearl

Faculty Articles

Everyone has an opinion, from President Obama to Matthew McConaughey, about the Washington football team name. This Article comprehensively analyzes the legal and social issues surrounding the mascot controversy. I focus my inquiry on the interaction of trademark law and Indian law. I offer three primary contributions in this Article. First, the current mainstream conception of harm caused by the team name is subjective, and I argue that the harm caused by the team name and logo is objective, testable, and demonstrable. Psychological research shows that these images harm Native people. Second, the remedies offered by the Lanham Act are …

Starting From Scratch: Reasserting "Indian Country" In Alasky By Placing Alaska Native Land Into Trust, William H. Holley

Florida A & M University Law Review

The Alaska Native Claims Settlement Act (ANCSA) was enacted for the purpose of promoting economic development in remote Alaska Native villages. ANCSA has fallen short of this goal. ANCSA dissolved the trust relationship between Alaska Native tribes and the federal government by transferring former tribal lands to state-chartered, Native corporations. As a result, ANCSA severed Alaska Native tribal authority from tribal lands. Today, tribal governments in Alaska are without the resources necessary to address issues that threaten the survival of their communities. Tribal governments throughout the lower 48 states have long used federal land-into-trust provisions to expand and consolidate former …

Recentering Tribal Criminal Jurisdiction, Addie C. Rolnick

Scholarly Works

The boundaries of modern tribal criminal jurisdiction are defined by a handful of clear rules—such as a limit on sentence length and a categorical prohibition against prosecuting most non-Indians—and many grey areas in which neither Congress nor the Supreme Court has specifically addressed a particular question. This Article discusses five of the grey areas: whether tribes retain concurrent jurisdiction to prosecute major crimes, whether tribes affected by Public Law 280 retain concurrent jurisdiction to prosecute a full range of crimes, whether tribes may prosecute Indians who are not citizens of any tribe, whether tribes may prosecute their own citizens for …

Owning Red: A Theory Of Indian (Cultural) Appropriation, Angela R. Riley, Kristen A. Carpenter

Publications

In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group of the cultural expressions and resources of another. While these and other incidents make contemporary headlines, American Indians often experience these claims within a historical and continuing experience of dispossession. For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands, artifacts, bodies, religions, identities, and beliefs, all toward the project of conquest and colonization. Indian …

Ocean Iron Fertilization And Indigenous Peoples' Right To Food: Leveraging International And Domestic Law Protections To Enhance Access To Salmon In The Pacific Northwest, Randall S. Abate

Journal Publications

Ocean iron fertilization (OIF) is a new and controversial climate change mitigation strategy that seeks to increase the carbon-absorbing capacity of ocean waters by depositing significant quantities of iron dust into the marine environment to stimulate the growth of phytoplankton blooms. The photosynthetic processes of these blooms absorb carbon from the atmosphere and sequester it to the ocean floor. OIF has been criticized on several grounds. including the foreseeable and unforeseeable adverse consequences it may cause to the marine environment, as well as the daunting challenge of reconciling several potentially overlapping sources of international and domestic environmental law, which may …

Recurring Issues In Indian Gaming Compact Approval, Kevin Washburn

Faculty Scholarship

Achieving agreement between a state and a tribe, and then achieving ratification of that agreement through state and tribal legislative processes, are challenging endeavors. Failing to account for the need for federal approval can undermine the entire negotiation process. The purpose of this article is to highlight several recurring problem areas that can place compact approval at risk. These include the requirement in IGRA that a compact avoid issues that are not germane to gaming,that the compact avoid regulating Class II gaming,which is beyond state authority, and the requirementthat the state avoid expanding its reach over ancillary services and spaces …

Federal Restrictions On Tribal Customary Law: The Importance Of Tribal Customary Law In Tribal Courts, Concetta R. Tsosie De Haro, Dine Nation

Tribal Law Journal

This article examines the adverse effects of federal case law and legislation on tribal courts and tribal courts’ ability to incorporate tribal customary law. Tribal customary law is the law given to tribes by holy deities which governs tribal ways of life. It is important to maintain tribal customary law because it strengthens tribal communities’ identities and cultural foundations. While Supreme Court precedent has, at different times, both restricted and promoted tribes’ ability to use tribal customary law to adjudicate the cases of tribal members, federal legislation including the Major Crimes Act, the Indian Civil Rights Act, the Tribal Law …

Black Water: The Devastating Effects Of Alcohol On The Core Values Of The A:Shiwi (Zuni), Christy Chapman

Tribal Law Journal

As in many Native American communities, alcohol use and abuse is an all too common problem among the Ashwi, members of Zuni Pueblo. Soon after the arrival of Anglo-American settlers, alcohol was introduced to the Zuni. Seeing its devastating effects, Zuni elders referred to this intoxicating substance as ‘black water.’ Since the introduction of black water, alcohol abuse among the Zuni has resulted in community members committing frequent criminal offenses, numerous health problems, and is the number-one cause of premature death among the Zuni.

Over the last century and a half, the devastating effects of black water have eroded the …