Indigenous, Indian, and Aboriginal Law Commons^™

Rethinking Resistance: Reflections On The Cultural Lives Of Property, Collective Identity, And Intellectual Property, 47 J. Marshall L. Rev. 1349 (2014), Caroline Joan Picart

UIC Law Review

No abstract provided.

Tribal Disruption And Indian Claims, Matthew L.M. Fletcher, Kathryn E. Fort, Dr. Nicholas J. Reo

Michigan Law Review First Impressions

Legal claims are inherently disruptive. Plaintiffs' suits invariably seek to unsettle the status quo. On occasion, the remedies to legal claims can be so disruptive-that is, impossible to enforce or implement in a fair and equitable manner-that courts simply will not issue them. In the area of federal Indian law, American Indian tribal claims not only disrupt the status quo but may even disrupt so-called settled expectations of those affected by the claims. The U.S. Court of Appeals for the Second Circuit has dismissed a round of Indian land claims at the pleading stage, includingOnondaga Nation v. New York, because …

It's Worth The Hassle Part Ii: How Does The Baby Veronica Case Impact Cases Involving Indian Children?, Elizabeth Brandt

Articles

No abstract provided.

Water Governance Challenges In New Mexico's Middle Rio Grande Valley: A Resilience Assessment, Melina Harm Benson, Dagmar Llewellyn, Ryan Morrison, Mark Stone

Publications

No abstract provided.

Jump In Before It's Too Late: Protecting And Increasing Streamflows In New Mexico, Sharon Wirth

Publications

Freshwater ecosystems need adequate streamflow to supply clean water for humans and maintain healthy habitat for wildlife. Over-appropriation, overuse, climate change, and drought plague New Mexico's rivers, taxing many rivers beyond sustainability. Despite the myriad of problems caused by little or no water in our rivers, policies and procedures to protect and increase streamflows in New Mexico are limited. While most Western states have made demonstrable progress in alleviating various legal and technical barriers to protecting and increasing streamflows, New Mexico has made only limited, recent progress towards solutions for our drying rivers. This article takes a critical look at …

Developing The Law Of The River: The Integration Of Law And Policy Into Hydrologic And Socio-Economic Modeling Efforts In The Willamette River Basin, Adell Louise Amos

Publications

A legal and policy infrastructure -- referred to as a "law of the river" -- exists for every river basin in the U.S. an can be as important as natural processes in terms of managing the future of the resource. Because of the way that water law and policy have evolved in the U.S., this infrastructure involves a matrix of state and federal law that governs the choices that policymakers, end users, and agencies make. This "law of the river" provides the context in which decisions are made and not made. It also draws the boundaries within which decision makers …

A Strange Kind Of Identity Theft: How Competing Definitions Of "Indian" May Deny Individual Identity, Suzianne D. Painter-Thorne

Articles

To the extent we think about it all, most of us believe what our parents tell us about where we came from-about who our grandparents are, who our ancestors were, our ethnic background, our family histories. My own family story includes claims to Scottish, Irish, French, and English ancestry. It also includes the Cherokee great-grandmother so popular in American genealogical stories. I have not undertaken an extensive genealogical search to more accurately pinpoint the threads of my ancestral quilt; I have simply accepted the family lore without much thought to whether it was verifiable.

My family's claimed link to the …

Protecting Traditional Knowledge In International Intellectual Property Law: Imperatives For Protection And Choice Of Modalities, 14 J. Marshall Rev. Intell. Prop. L. 25 (2014), Tesh Dagne

UIC Review of Intellectual Property Law

The need for protecting traditional knowledge (TK) has been acknowledged in discussion and negotiations under the umbrella of a number of inter-governmental organizations that deal with biodiversity, the environment, indigenous peoples’ rights, human rights, food and agriculture, among others. It has, however, proved difficult to arrive at a consensus on the proper modality that can serve the needs and desires of Indigenous and Local Communities (ILCs) in their economic and cultural participation. The article examines the imperatives for the protection of TK and explores the modalities of TK protection at the international level for regulating the control of, access to …

Misadventures In Indian Law: The Supreme Court's Patchak Decision, Anna O'Brien

University of Colorado Law Review

"After today, any person may sue under the Administrative Procedure Act . .. to divest the Federal Government of title to and possession of land held in trust for Indian tribes . . . so long as the complaint does not assert a personal interest in the land.' - Justice Sotomayor, dissenting in Match-E-Be-Nash- She- Wish Band of Pottawatomi Indians v. Patchak. Ever since European colonization of the Americas began in the fifteenth century, there has been friction between the new arrivals and the native inhabitants. The United States has dealt with its "Indian problem" through assimilation, reservations, and eventually, …

Comparative Institutional Competency And Sovereignty In Indian Affairs, Michalyn Steele

University of Colorado Law Review

While vigorous debate surrounds the proper scope and ambit of inherent tribal authority, there remains a critical antecedent question: whether Congress or the courts are ultimately best situated to define the contours of inherent tribal authority. In February 2013, Congress enacted controversial tribal jurisdiction provisions as part of the Violence Against Women Act reauthorization recognizing and affirming inherent tribal authority to prosecute all persons, including non-Indian offenders, for crimes of domestic violence in Indian country. This assertion by Congress of its authority to set the bounds of tribal inherent authority-beyond where the United States Supreme Court has held tribal inherent …

Meaningful Consultation With Tribal Governments: A Uniform Standard To Guarantee That Federal Agencies Properly Consider Their Concerns, Michael Eitner

University of Colorado Law Review

"Mount Tenabo is the source of our creation stories and is a central part of our spiritual world view. . . . It holds the Puha, or life force, of the Creator. We pray to the Mountain for renewal, which comes from Mt. Tenabo's special place in Western Shoshone religion.' ' - Sandy Dann, Western Shoshone The obligation that federal agencies consult with Indian tribes regarding undertakings that impact tribal interests is grounded in various statutes, implementing regulations, and Executive Order 13,175. Currently, tribes confront a variety of approaches to consultation because each agency develops its own standards for conducting …

Sacred Rain Arrow: Honoring The Native American Heritage Of The States While Balancing The Citizens' Constitutional Rights, Amelia Coates

American Indian Law Review

Many states’ histories and traditions are steeped heavily in Native American culture, which explains why tribal imagery and symbolism are prevalent in official state paraphernalia such as license plates, flags, and state seals. Problems arise for states using Native American artwork when a citizen takes offense to the religious implications of Native American depictions, and objects to having it displayed on any number of items. This Comment will examine the likely outcome of cases involving Establishment Clause and compelled speech claims arising from Native American images and propose a solution for balancing the constitutional rights of the citizens while still …

Montana's Rural Version Of The School-To-Prison Pipeline: School Discipline And Tragedy On American Indian Reservations, Melina Healey

Scholarly Works

American Indian adolescents in Montana are caught in a school-to prison pipeline. They are plagued with low academic achievement, high dropout, suspension and expulsion rates, and disproportionate contact with the juvenile and criminal justice systems. While these are typical of the school-to-prison phenomenon as it also appears in poor minority communities across the country, the rates and the disproportion for American Indians in Montana are particularly acute. Even more disturbing, many American Indian students in Montana are also the victims of another heartbreaking trend related to the school-to-prison pipeline — alarming levels of adolescent suicides and self-harm. The tragic situation …

Culture Clashes: Indigenous Populations And Globalization-The Case Of Belo Monte, Berta E. Hernández-Truyol

UF Law Faculty Publications

There exists a significant schism between the world of indigenous persons and the process of globalization. To resolve conflicts at the intersection of these divergent worlds, it is imperative to develop a paradigm that recognizes the trade and human rights discourses are intertwined parts of the larger legal and human universe. Such a framework will enable a bridge between the spheres that will benefit humanity so the world will be not only a richer place, but also a better place.

Remaking Indians, Remaking Citizens: Peruvian And Mexican Perspectives On Criminal Law And National Integration, Lior Ben David

Studio for Law and Culture

At the end of the 20th century, recognition of indigenous peoples’ rights in Latin American constitutions has undergone significant evolution, while legal reforms officially “turned” some of these countries into multicultural nations. For many scholars, this multicultural shift was particularly prominent against a background of many years, during which the legal systems of Latin America ignored, excluded, assimilated and repressed indigenous peoples, portraying “The Indian” as an anomaly in a society of free end equal citizens. This article examines the images, representations and treatment of the Indians and “the Indian Question” in Peruvian and Mexican Criminal Law during the first …

Stabilizing Morality In Trademark Law, Christine Haight Farley

Scholarly Articles in Law Reviews & Journals

Almost all of the commentary concerning the statutory prohibition on registering offensive trademarks lambasts it as a misguided attempt to enforce civility through trademark law. This Article carefully considers the challenges accompanying section 2(a) of the U.S. Trademark Act and defends it as good policy. There are, however, a few instances in which the jurisprudence under section 2(a) has created more problems than it has solved. To alleviate these problems, this Article proposes judging words per se and abandoning the traditional trademark notion of evaluating words in context. Judging words per se is warranted given the very different objectives underlying …

Montana’S Rural Version Of The School-To-Prison Pipeline: School Discipline And Tragedy On American Indian Reservations, Melina A. Healey

Faculty Publications & Other Works

No abstract provided.

Indigenous Rights Litigation, Legal History, And The Role Of Experts, Kent Mcneil

Articles & Book Chapters

Litigation involving the rights of Indigenous peoples in Canada usually involves historical facts and events from a long time ago, sometimes as far back as 400 years. This reality presents significant challenges for proof of the facts upon which these rights are based. In addition to historical documents, the parties have to rely on testimony by Indigenous witnesses who are able to present the oral histories and traditions of their people, as well as on the opinion evidence of experts such as archaeologists, anthropologists, linguists, historians, ethnohistorians, and legal historians. In this paper, I examine the role of legal historians …

Equally Recognized? The Indigenous Peoples Of Newfoundland And Labrador, Sébastien Grammond

Osgoode Hall Law Journal

In Canada, certain Indigenous groups are struggling to obtain official recognition of their status and rights. This is particularly so in Newfoundland and Labrador, where the authorities took the stance, when the province joined Canada in 1949, that no one would be legally considered Indigenous. This paper analyzes the claims of the Indigenous groups of that province, which have resulted, over the last thirty years, in various forms of official recognition. In particular, this article highlights how the concept of equality was used by these Indigenous groups to buttress their claims. Equality, in this context, was mainly conceived of as …

Comparative Institutional Competency And Sovereignty In Indian Affairs, Michalyn Steele

Faculty Scholarship

While vigorous debate surrounds the proper scope and ambit of inherent tribal authority, there remains a critical antecedent question: whether Congress or the courts are ultimately best situated to define the contours of inherent tribal authority. In February 2013, Congress enacted controversial tribal jurisdiction provisions as part of the Violence Against Women Act reauthorization recognizing and affirming inherent tribal authority to prosecute all persons, including non-Indian offenders, for crimes of domestic violence in Indian country. This assertion by Congress of its authority to set the bounds of tribal inherent authority -- beyond where the United States Supreme Court has held …