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Property Rights and Freedom: The Keys to Improving Life in Indian Country
American Indians are at the bottom of nearly every indicator of welfare and have been since the founding of the United States. The present paper focuses on but two of the causal agents: lack of private property rights and a dearth of economic freedom. Although addressing these issues will not solve all of Indian country's problems, strengthening property rights and improving economic freedom will generate opportunities for American Indians to improve their economic and social well-being. This recommendation is easy to implement and aligns well with tribal culture pre-contact.
John Marshall and Indian LAnd Rights: A Historical Rejoinder to the Claim of "Universal Recognition" of the Doctrine of Discovery
While the writings of theorists and the practices of colonizing nations lend support for Marshall's conclusions, the Chief Justice's claim of “universal recognition” of the principles underlying Johnson v. McIntosh is belied by the historical record.4 The Illinois and Wabash purchases at issue in Johnson v. McIntosh, whereby native lands were sold in 1773 and 1775 to private individuals, were by no means unprecedented.5 This Article presents a historical rejoinder to John Marshall's claim of universal acceptance of the doctrine of discovery and the diminished nature of Indian land rights.
Government of the People, By the People, for the People: Cultural Sovereignty, Civil Rights, and Good Native Hawaiian Governance
Pursuant to both federal law and Native peoples' own understandings, Native governments are sovereign entities with inherent authority to govern their territories in accordance with their communities' own intrinsic values. This inherent authority includes the power to determine the structure of Native justice systems and the power to use distinctly Native mechanisms to restrain government power and protect individual autonomy. However, because Native governments operate within a geographic area that the United States claims to control, they are regularly forced to contend with the values, expectations, and interests of other sovereigns--such as state and federal governments--who purport to operate within the same political space. Unfortunately, the values, expectations, and interests of these other sovereigns are often influenced by the widespread and pernicious stereotype that Native governments within the United States “are unfair to outsiders, ignore or suppress their *60 members' individual liberties, and rule without accountability.” In order to counteract this unfounded stereotype, many Native governments include verbatim recitations of federal and state civil rights protections in their constitutions and statutes, despite the fact that those civil rights protections are often culturally irrelevant and tend to impede the expression of Native sovereignty.
The International Law of Colonialism: A Comparative Analysis
The majority of the non-European world was colonized under an international law that is known as the Doctrine of Discovery. Under this legal principle, European countries claimed superior rights over Indigenous nations. When European explorers planted flags and religious symbols in the lands of native peoples, they were making legal claims of ownership and domination over the lands, assets, and peoples they had “discovered.” These claims were justified by racial, ethnocentric, and religious ideas of the alleged superiority of European Christians. This Article examines the application of Discovery by Spain, Portugal, and England in the settler societies of Australia, Brazil, Canada, Chile, New Zealand, and the United States. The comparative law analysis used in this Article demonstrates that these three colonizing countries applied the elements of the Doctrine in nearly identical ways against Indigenous peoples. Furthermore, the six settler societies analyzed here continue to apply this law today to restrict the human, property, and sovereign rights of Indigenous nations and peoples. This Article concludes that basic fairness and a restoration of the self-determination rights of Indigenous peoples mandates that these countries work to remove the vestiges of the Doctrine of Discovery from their modern day laws and policies.
American Indians and the Fight for Equal Voting Rights by
The struggle for voting rights was not limited to African Americans in the South. American Indians also faced discrimination at the polls and still do today. This book explores their fight for equal voting rights and carefully documents how non-Indian officials have tried to maintain dominance over Native peoples despite the rights they are guaranteed as American citizens. Laughlin McDonald has participated in numerous lawsuits brought on behalf of Native Americans in Montana, Colorado, Nebraska, South Dakota, and Wyoming. This litigation challenged discriminatory election practices such as at-large elections, redistricting plans crafted to dilute voting strength, unfounded allegations of election fraud on reservations, burdensome identification and registration requirements, lack of language assistance, and noncompliance with the Voting Rights Act. McDonald devotes special attention to the VRA and its amendments, whose protections are central to realizing the goal of equal political participation. McDonald describes past and present-day discrimination against Indians, including land seizures, destruction of bison herds, attempts to eradicate Native language and culture, and efforts to remove and in some cases even exterminate tribes. Because of such treatment, he argues, Indians suffer a severely depressed socioeconomic status, voting is sharply polarized along racial lines, and tribes are isolated and lack meaningful interaction with non-Indians in communities bordering reservations. Far more than a record of litigation, American Indians and the Fight for Equal Voting Rights paints a broad picture of Indian political participation by incorporating expert reports, legislative histories, newspaper accounts, government archives, and hundreds of interviews with tribal members. This in-depth study of Indian voting rights recounts the extraordinary progress American Indians have made and looks toward a more just future.
Call Number: KF 8210 .S84 M38 2010
Publication Date: 2011
American Indian Sovereignty and Law by
American Indian Sovereignty and Law: An Annotated Bibliography covers a wide variety of topics and includes sources dealing with federal Indian policy, federal and tribal courts, criminal justice, tribal governance, religious freedoms, economic development, and numerous sub-topics related to tribal and individual rights. While primarily focused on the years 1900 to the present, many sources are included that focus on the 19th century or earlier. The annotations included in this reference will help researchers know enough about the arguments and contents of each source to determine its usefulness. Whenever a clear central argument is made in an article or book, it is stated in the entry, unless that argument is made implicit by the title of that entry. Each annotation also provides factual information about the primary topic under discussion. In some cases, annotations list topics that compose a significant portion of an author's discussion but are not obvious from the title of the entry. American Indian Sovereignty and Law will be extremely useful in both studying Native American topics and researching current legal and political actions affecting tribal sovereignty.
Call Number: KF 8201 .A1 A44 2009
Publication Date: 2009
Broken Landscape by
Broken Landscape is a sweeping chronicle of Indian tribal sovereignty under the United States Constitution and the way that legislators have interpreted and misinterpreted tribal sovereignty since the nation's founding. Frank Pommersheim, one of America's leading scholars in Indian tribal law,offers a novel and deeply researched synthesis of this legal history from colonial times to the present, confronting the failures of constitutional analysis in contemporary Indian law jurisprudence. He demonstrates that the federal government has repeatedly failed to respect the Constitution'srecognition of tribal sovereignty. Instead, it has favored excessive, unaccountable authority in its dealings with tribes.Pommersheim argues that the Supreme Court has strayed from its Constitutional roots as well, consistently issuing decisions over two centuries that have bolstered federal power over the tribes. Closing with a proposal for a Constitutional amendment that would reaffirm tribal sovereignty, BrokenLandscape challenges us to finally accord Indian tribes and Indian people the respect and dignity that are their due.
Call Number: KF 8205 .P63 2009
Publication Date: 2012
Tribes, Treaties, and Constitutional Tribulations by
"Federal Indian law . . . is a loosely related collection of past and present acts of Congress, treaties and agreements, executive orders, administrative rulings, and judicial opinions, connected only by the fact that law in some form has been applied haphazardly to American Indians over the course of several centuries. . . . Indians in their tribal relation and Indian tribes in their relation to the federal government hang suspended in a legal wonderland." In this book, two prominent scholars of American Indian law and politics undertake a full historical examination of the relationship between Indians and the United States Constitution that explains the present state of confusion and inconsistent application in U.S. Indian law. The authors examine all sections of the Constitution that explicitly and implicitly apply to Indians and discuss how they have been interpreted and applied from the early republic up to the present. They convincingly argue that the Constitution does not provide any legal rights for American Indians and that the treaty-making process should govern relations between Indian nations and the federal government.
Call Number: KF 8210 .C5 D45 1999
Publication Date: 2000
Indigenous American Database Resources
Indigenous Peoples in the Americas (Hein)
With more than 3,700 titles and more than 1.5 million total pages dedicated to indigenous American life and law, this library includes an expansive archive of treaties, federal statutes and regulations, federal case law, tribal codes, constitutions, and jurisprudence. It also features rare compilations edited by Felix S. Cohen that have never before been accessible online.
Recent Supreme Court Cases
McGirt v. Oklahoma, No.18-9526, 591 U.S. ___ (July 9, 2020).
The Major Crimes Act (MCA) provides that, within “the Indian country,” “[a]ny Indian who commits” certain enumerated offenses “shall be subject to the same law and penalties as all other persons committing any of [those] offenses, within the exclusive jurisdiction of the United States.” 18 U.S.C. § 1153(a). “Indian country” includes “all land within the limits of any Indian reservation under the jurisdiction of the United States Government.” § 1151. Petitioner Jimcy McGirt was convicted by an Oklahoma state court of three serious sexual offenses. He unsuccessfully argued in state postconviction proceedings that the State lacked jurisdiction to prosecute him because he is an enrolled member of the Seminole Nation and his crimes took place on the Creek Reservation. He seeks a new trial, which, he contends, must take place in federal court.
Herrera v. Wyoming, No. 17-532, 587 U.S. ___ (May 20, 2019).
An 1868 treaty between the United States and the Crow Tribe promised that in exchange for most of the Tribe's territory in modern-day Montana and Wyoming, its members would “have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon ... and peace subsists ... on the borders of the hunting districts.” 15 Stat. 650. In 2014, Wyoming charged petitioner Clayvin Herrera with off-season hunting in Bighorn National Forest and being an accessory to the same. The state trial court rejected Herrera's argument that he had a protected right to hunt in the forest pursuant to the 1868 Treaty, and a jury convicted him.
United States v. Bryant, No. 15-420, 579 U.S. ___ (June 13, 2016).
This case raises the question whether § 117(a)'s inclusion of tribal-court convictions as predicate offenses is compatible with the Sixth Amendment's right to counsel. The Sixth Amendment guarantees indigent defendants appointed counsel in any state or federal criminal proceeding in which a term of imprisonment is imposed, but it does not apply in tribal-court proceedings. The Indian Civil Rights Act of 1968 (ICRA), which governs tribal-court proceedings, accords a range of procedural safeguards to tribal-court defendants “similar, but not identical, to those contained in the Bill of Rights and the Fourteenth Amendment,”. In particular, ICRA provides indigent defendants with a right to appointed counsel only for sentences exceeding one year. ICRA's right to counsel therefore is not coextensive with the Sixth Amendment right.
Michigan v. Bay Mills Indian Community, No. 12-515, 572 U.S. ___ (May 27, 2014).
The State of Michigan, petitioner, entered into a compact with respondent Bay Mills Indian Community pursuant to the Indian Gaming Regulatory Act (IGRA). See 25 U.S.C. § 2710(d)(1)(C). The compact authorizes Bay Mills to conduct class III gaming activities (i.e., to operate a casino) on Indian lands located within the State's borders, but prohibits it from doing so outside that territory. Bay Mills later opened a second casino on land it had purchased through a congressionally established land trust. The Tribe claimed it could operate a casino there because the property qualified as Indian land. Michigan disagreed and sued the Tribe under § 2710(d)(7)(A)(ii), which allows a State to enjoin “class III gaming activity located on Indian lands and conducted in violation of any Tribal–State compact.” The District Court granted the injunction, but the Sixth Circuit vacated. It held that tribal sovereign immunity barred the suit unless Congress provided otherwise, and that § 2710(d)(7)(A)(ii) only authorized suits to enjoin gaming activity located “on Indian lands,” whereas Michigan's complaint alleged the casino was outside such territory.
Native Americans Rights Fund
Obstacles at Every Turn: Barriers to Political Participation Faced by Native American Voters
In 2017 and 2018, the Native American Voting Rights Coalition—founded by the Native American Rights Fund—held nine public hearings to better understand how Native Americans are systemically and culturally kept from fully exercising their franchise. More than 120 witnesses testified from dozens of tribes across the country.
Indigenous Environment Network
IEN is an alliance of Indigenous peoples whose mission it is to protect the sacredness of Earth Mother from contamination and exploitation by strengthening, maintaining and respecting Indigenous teachings and natural laws.
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