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In many accounts of Native American history, treaties are synonymous with tragedy. From the beginnings of settlement, Europeans made and broke treaties, often exploiting Native American lack of alphabetic literacy to manipulate political negotiation. But while colonial dealings had devastating results for Native people, treaty making and breaking involved struggles more complex than any simple contest between invaders and victims. The early colonists were often compelled to negotiate on Indian terms, and treaties took a bewildering array of shapes ranging from rituals to gestures to pictographs. At the same time, Jeffrey Glover demonstrates, treaties were international events, scrutinized by faraway European audiences and framed against a background of English, Spanish, French, and Dutch imperial rivalries.To establish the meaning of their agreements, colonists and Natives adapted and invented many new kinds of political representation, combining rituals from tribal, national, and religious traditions. Drawing on an archive that includes written documents, printed books, orations, landscape markings, wampum beads, tally sticks, and other technologies of political accounting, Glover examines the powerful influence of treaty making along the vibrant and multicultural Atlantic coast of the seventeenth century.

Faith in Paper is about the reinstitution of Indian treaty rights in the Upper Great Lakes region during the last quarter of the 20th century. The book focuses on the treaties and legal cases that together have awakened a new day in Native American sovereignty and established the place of Indian tribes on the modern political landscape. In addition to discussing the historic development of Indian treaties and their social and legal context, Charles E. Cleland outlines specific treaties litigated in modern courts as well as the impact of treaty litigation on the modern Indian and non-Indian communities of the region. Faith in Paper is both an important contribution to the scholarship of Indian legal matters and a rich resource for Indians themselves as they strive to retain or regain rights that have eroded over the years. Charles E. Cleland is Michigan State University Emeritus Professor of Anthropology and Curator of Anthropology and Ethnology. He has been an expert witness in numerous Native American land claims and fishing rights cases and written a number of other books on the subject, including Rites of Conquest: The History and Culture of Michigan's Native Americans; The Place of the Pike (Gnoozhekaaning): A History of the Bay Mills Indian Community; and (as a contributor) Fish in the Lakes, Wild Rice, and Game in Abundance: Testimony on Behalf of Mille Lacs Ojibwe Hunting and Fishing Rights.

With input from leading commentators and senior jurists, this account provides a solid understanding of the key problems surrounding Australia's native title. Consolidating 16 papers presented at the national Native Title Conference since the historic Mabo judgment, this inspirational compilation ties native title to the fundamental issue that is Indigenous peoples'place within the Australian political and legal framework and within its national identity. With contributions about New Zealand, the United States, and the United Nations, this reference also offers a comparative understanding of international Indigenous land rights and interests.

Most Australians are familiar with the concept of land ownership and understand the meaning of native title, which recognises Indigenous peoples'rights to land to which they are spiritually or culturally connected. The ownership of areas of the sea and its resources is often overlooked however, despite Aboriginal and Torres Strait Islander connections with the sea being just as important as those with the land. The papers in this volume demonstrate how the concept of customary marine tenure has developed in various communities and look at some of its implications. Originating in a session of papers at a conference in 1996, the papers in this volume were originally published as Oceania Monograph 48 in 1998.

Between Indigenous and Settler Governance addresses the history, current development and future of Indigenous self-governance in four settler-colonial nations: Australia, Canada, New Zealand and the United States. Bringing together emerging scholars and leaders in the field of indigenous law and legal history, this collection offers a long-term view of the legal, political and administrative relationships between Indigenous collectivities and nation-states. Placing historical contingency and complexity at the center of analysis, the papers collected here examine in detail the process by which settler states both dissolved indigenous jurisdictions and left spaces – often unwittingly – for indigenous survival and corporate recovery. They emphasise the promise and the limits of modern opportunities for indigenous self-governance; whilst showing how all the players in modern settler colonialism build on a shared and multifaceted past. Indigenous tradition is not the only source of the principles and practices of indigenous self-determination; the essays in this book explore some ways that the legal, philosophical and economic structures of settler colonial liberalism have shaped opportunities for indigenous autonomy. Between Indigenous and Settler Governance will interest all those concerned with Indigenous peoples in settler-colonial nations.

This book provides a comprehensive resource for accommodating and pursuing Indigenous perspectives in legal education.The book is divided into three sections. The first section highlights the continuing issues that Indigenous people face in law schools and universities, including the ongoing impacts of colonisation and intergenerational trauma, institutional racism and exclusion. This section also includes chapters that explore arguments for the recognition of Indigenous legal knowledge and of the impact of settler law, and the incorporation of Indigenous concepts, laws and ways of thinking about settler law across the curriculum. The second section explores how Indigenous ways of reading and thinking about settler law make a difference to how settler law is understood and interpreted. Contributors consider the power of storytelling and address the prospect of law's decolonisation. The third section of the book grapples with how traditional law school subjects can be taught through an Indigenous lens, including torts, public law, criminal law and sentencing, clinical legal education, and native title. Throughout, the book demonstrates the importance of, and offers practical advice for, teaching law in a way that includes critical Indigenous perspectives.This book will be of enormous value to teachers, researchers, students in law, legal studies and Indigenous studies, and others with an interest in decolonising legal education.The Open Access version of this book, available at www.taylorfrancis.com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives (CC-BY-NC-ND) 4.0 license.

This book provides a definitive account of the creation and rise of the international Indigenous Peoples'movement.In the late 1970s, motivated by their dire situation and local struggles, and inspired by worldwide movements for social justice and decolonization, including the American civil rights movement, Indigenous Peoples around the world got together and began to organize at the international level. Although each defined itself by its relation to a unique land, culture, and often language, Indigenous Peoples from around the world made an extraordinary leap, using a common conceptual vocabulary and addressing international bodies that until then had barely recognized their existence. At the intersection of politics, law, and culture, this book documents the visionary emergence of the international Indigenous movement, detailing its challenges and achievements, including the historic recognition of Indigenous rights through the adoption of the UN Declaration on the Rights of Indigenous Peoples in 2007. The winning by Indigenous Peoples of an unprecedented kind and degree of international participation – especially at the United Nations, an institution centered on states – meant overcoming enormous institutional and political resistance. The book shows how this participation became an increasingly assertive self-expression and even an exercise of self-determination by which Indigenous Peoples could both benefit from and contribute to the international community overall – now, crucially, by sharing their knowledge about climate change, their approaches to development and well-being, and their struggles against the impact of extractive industries on their lands and resources.Written by the former Chief of the Secretariat of the United Nations Permanent Forum on Indigenous Issues, this book will be of interest to researchers, teachers, students, advocates, practitioners, and others with interests in Indigenous legal and political issues.

When did the federal government's self-appointed, essentially limitless authority over Native America become constitutional? The story they have chosen to tell is wrong. It is time to tell a better story. Thus begins Keith Richotte's playful, unconventional look at Native American and Supreme Court history. At the center of his account is the mystery of a massive federal authority called plenary power. When the Supreme Court first embraced plenary power in the 1880s it did not bother to seek any legal justification for the decision – it was simply rooted in racist ideas about tribal nations. By the 21st century, however, the Supreme Court was telling a different story, with opinions crediting the U.S. Constitution as the explicit source of federal plenary power. So, when did the Supreme Court change its story? Just as importantly, why did it change its story? And what does this change mean for Native America, the Supreme Court, and the rule of law? In a unique twist on legal and Native history, Richotte uses the genre of trickster stories to uncover the answers to these questions and offer an alternative understanding. The Worst Trickster Story Ever Told provides an irreverent, entertaining synthesis of Native American legal history across more than 100 years, reflecting on race, power, and sovereignty along the way. By embracing the subtle, winking wisdom of trickster stories, and centering the Indigenous perspective, Richotte opens up new avenues for understanding this history. We are able, then, to imagine a future that is more just, equitable, and that better fulfills the text and the spirit of the Constitution.

This book provides a comprehensive approach to the perspectives, lived experiences, and socio-cultural beliefs of Indigenous scholars regarding disabilities through a distinctions-based approach. Indigenous people demonstrate considerable knowledge in a multitude of capacities in spite of legal, monetary, social, economic, health, and political inequalities that they experience within from administrative authorities whether health, education, or governments.By including various knowledge systems related to social-cultural, traditional governance, spirituality, educational, and self-representation within a communal understanding, the knowledge brought forth will be a combination of information from within/communal and outwards/infusion by Indigenous teachers, scholars, academics, and professionals who aim to combat the negative effects of disability labels and policies that have regulated Indigenous peoples.Comprised of five sections: The power, wisdom, knowledge, and lived experiences of Elders Reframing the narrative – Navigating self-representation Learning from within – Including traditional knowledge Challenging colonial authority – Infusing regional ideals and concepts Interpretations, narratives, and lived experiences of grassroots teachers and social service providers It will be an asset to those who seek out a deeper understanding of the complexity of Indigenous people and their knowledge, including anyone who deals with predominantly non-Indigenous mindsets and barriers to education.Courses on disability studies, Indigenous studies, social work, health, education, and development studies will all benefit from this book.

This book considers the ethics and politics of state apologies made to Indigenous peoples.The prevalent tendency to treat an apology as a speech act has maintained the focus on the state leader making the apology and not on the victims'claims. This book demonstrates the inherent shortcomings of this approach through an examination of apologies delivered to Indigenous peoples in Australia and Canada. Contrasting the texts of these apologies with Indigenous peoples'responses, the book develops an understanding of apology as a relational process. This involves engaging Indigenous peoples in dialogue, the aim of which would be to address past injuries by fulfilling the apology's transformative promise of'never again'to Indigenous peoples'satisfaction. The book concludes by examining more recent developments in Australia and Canada that highlight the continuing need for government accountability to fulfil this promise and ensure Indigenous people's rights and interests are upheld.This book will be of considerable interest to scholars and students in the fields of law and politics, Indigenous studies; forgiveness studies; transitional justice and reconciliation; settler colonialism and decolonisation.

The Inter-American Court of Human Rights has the most developed jurisprudence on indigenous rights, yet this case law is understudied. This book addresses this gap by exploring the Court and its cases from both the perspective of international law and the legal protection of indigenous territories.Setting out the network of actors and institutions involved in such litigation, it examines the motivations and constraints in domestic politics affecting international orders (and by extension the impact of the Court). It provides both an important statement on the effectiveness of international tribunals and a fascinating insight into the evolution of indigenous rights.

Aboriginal land rights recognition in 1983 came after nearly 200 years of violent colonial dispossession and the near complete loss of land. For over 40 years, NSW Aboriginal people have worked to restore their Country and people. The Aboriginal Land Rights Act in NSW includes unique features that remain unrealised in other parts of the country. The laws announced the policy of self-determination, compensation for loss, a land claims process, support for enterprises and the establishment of a network of land councils. Today there are 120 land councils that operate across the state. Yet significant features of the land rights promise remain outstanding. Less than 1 per cent of the state has been restituted to Aboriginal land councils, with tens of thousands of land claims yet to be determined. In Land Back, Professor Heidi Norman, a leading expert on Aboriginal political history, has brought together voices at the forefront of the land rights movement, including lawyers, NSW Aboriginal Land Council Youth Committee members, students, academics, activists and organisers, to share the successes, failures and possible futures of NSW land rights.

In 2007, the United Nations Declaration on the Rights of Indigenous Peoples became law, extending inherent human rights for the first time to the approximately half a billion Indigenous people around the planet. But nation-states have been slow to rethink their laws and policies. Protecting Indigenous Knowledge and Heritage situates Canadian progress in undertaking these reforms within a global context and explains what Indigenous knowledge is, who may use it, and how to provide it with legal protection. By tracing decade-long negotiations with British Columbia and Canada, this book demonstrates the fundamental role of Indigenous advocacy in developing legislation and action plans to implement inherent rights. This fully new edition tackles current issues in intellectual property rights and topics such as the revision of educational curricula to incorporate Indigenous content and methodologies. What emerges is a proposal for cooperative legal reform that will invigorate Indigenous knowledge systems and heritage.

Indigenous Legalities, Pipeline Viscosities examines the relationship between the Wet'suwet'en and hydrocarbon pipeline development, showing how colonial governments and corporations seek to control Indigenous claims and how the Wet'suwet'en resist. Tyler McCreary explores pipeline regulatory review processes, reviews attempts to reconcile Indigeneity with development, and asks fundamental questions about territory and jurisdiction. In the process, he offers historical context for the continuing influences of colonialism on Indigenous peoples. Throughout, McCreary demonstrates how the cyclical movements between resistance and reconciliation are affected by the unequal relations between Indigenous peoples, colonial governments, and development operations. This sophisticated analysis invites readers to consider the complex realities of Indigenous and Wet'suwet'en law, as well as the politics of pipeline development.

The development of equitable relationships and outcomes among Indigenous communities, resource development companies, and governments in Canada is slow and uneven. Protest and Partnership brings together expert contributors to ask what works—and what doesn't—in these relationships. It explores what processes lead to greater involvement and control in decision-making by Indigenous Peoples and the establishment of mutually beneficial partnerships. Protest and Partnership presents case studies on a range of resource development sectors including oil and gas, renewable energy, mining, and forestry, drawn from regions across Canada. It presents a fine-grained analysis of institutions and processes, demonstrating how Indigenous communities work within and outside frameworks and processes established by governments and industry. It recognizes the persistent failure of Canadian governments to honour treaty rights and provide meaningful consultation and demonstrates how Indigenous groups, communities, and governments have engaged in self-determined resource development despite these ongoing failures. Offering broad lessons in the importance of co-management and co-governance, the autonomy of Indigenous Peoples, transparency and accountability, Indigenous economic security, and meaningful collaboration and engagement, Protest and Partnership is a thorough and careful exploration of the current state of consultation and engagement on resource development with Indigenous communities in Canada.

This book offers an international breadth of historical and theoretical insights into recent efforts to'decolonise'legal education across the world. With a specific focus on post- and decolonial thought and anti-racist methods in pedagogy, this edited collection provides an accessible illustration of pedagogical innovation in teaching and learning law. Chapters cover civil and common law legal systems, incorporate cases from non-state Indigenous legal systems, and critically examine key topics such as decolonisation and anti-racism in criminology, colonialism and the British Empire, and court process and Indigenous justice. The book demonstrates how teaching can be modified and adapted to address long-standing injustice in the curriculum. Offering a systematic collection of theoretical and practical examples of anti-racist and decolonial legal pedagogy, this volume will appeal to curriculum designers and law educators as well as to undergraduate and post-graduate level law teachers and researchers.

Against the Odds documents the remarkable achievements of Thomas R. Berger in the legal field, including his pioneering work in advocating for Indigenous rights that courts in Canada and the US had previously overlooked. Mid-career, Justice Thomas Berger accepted the challenge of leading the Mackenzie Valley Pipeline Inquiry in Canada's Northwest Territories. He organized the Inquiry to give northern First Nations an equal voice in the proceedings by holding thirty community hearings in which all were invited to participate. Berger's careful, reasoned arguments prevailed time and time again. Later in his career, Justice Berger led public hearings into the Alaska Native Claims Settlement Act (ANCSA), focusing on its impacts on Native Alaskans. Against the Odds also features an exceptional gallery of full-colour, previously unpublished photographs of the Dene and Inuvialuit, taken by Michael Jackson KC, Special Counsel for the Berger Inquiry, and portrait photographer Linda MacCannell.

This book concerns the often fractious interface between drug discovery and commercialisation, environmental degradation, the biodiversity crisis, the exploitation of indigenous peoples and the destruction of their culture, the right to health, inequalities of power, and the ability of the law to protect knowledge.For millennia, medicinal plants have provided a trove of treatments for human ailments, and the key to that treasure has been the traditional knowledge of the indigenous peoples who have lived alongside these plants. More recently that knowledge has been taken, often without consent or recompense, by Western science as a springboard for the development of pharmaceutical agents. As a response to threats to biodiversity and indigenous culture, international mechanisms have created, or are creating, enforceable rights for indigenous peoples to control such knowledge.With a background in pharmacology and molecular biology and significant experience as a lawyer in pharmaceutical and biotech patent litigation, the author brings a fresh perspective to understanding the difficulties of enforcing such rights and, in particular, examines whether there is a philosophically justifiable limit to the downstream scope of such rights.This book is aimed at all those with an interest in the control of indigenous genetic knowledge and the protection of indigenous culture, whether academics, anthropologists or pharmaceutical researchers, and those seeking to make indigenous rights work, as activists, legislators or practising lawyers.

This book is the first comparative law study of collateral consequences of criminal conviction in all federally recognized Indian tribes in the lower 48 U.S. states, and the mechanisms for restoring civil rights in tribal law.Surveying the constitutions, codes, and ordinances of tribal jurisdictions reveals a broad range of consequences – the impact of which has not been comprehensively and critically examined. Like state and federal jurisdictions, tribal law attaches thousands of legal disabilities to tribal offices, business licenses and permits, social services, and civil rights for persons with criminal convictions. This is especially true in economically important industries such as gaming and resource extraction; additionally, rapidly changing areas such as marijuana regulation and sex offender registries expand the scope still further. This book catalogues restoration of rights procedures in tribal law, to include pardons, expungements, and record sealing. Collateral consequences have proliferated in tribal law because of the limitations of tribal criminal jurisdiction, including over non-tribal members. However, tribal collateral consequences risk contributing to overcriminalization and social exclusion for persons with previous criminal convictions, especially as Native Americans are already disproportionately impacted by the U.S. criminal justice system.This book will appeal to legal academics, scholars, and practitioners working in tribal criminal law, as well as to others with interests in Indigenous legal issues.

This book examines the development and fundamental nature of legal pluralism. Legal pluralism evokes two distinctions: ‘state'vs ‘non-state'law; and ‘law'vs ‘non-law'. As such, although this book focuses upon circumstances in which two or more legal orders compete to govern the same social space, it also addresses the nature of law in general. Drawing on material conflicts arising within jurisdictions such as Australia, Burundi, Cameroon, Gambia, the United States, and Zambia, this book explores the conceptual, moral, and political challenges that legal pluralism creates. Emphasising that non-state law carries no less dignity than that often ascribed to the legal orders of contemporary states, it advances a theoretically sophisticated argument in favour of recognising and respecting genuine cases of legal pluralism, wherever they arise. Accessible and thought provoking, this book will appeal to legal scholars, anthropologists, sociologists, and political and social philosophers as well as practising lawyers, judges, and policymakers who deal with issues of legal pluralism.

The book examines whether the protection of Intangible Cultural Heritage (ICH) by Indonesia and Malaysia upheld the interests of the various communities from which the cultural heritage originates, and whether the laws recognise that cultural heritage is often shared with other states and communities.The legal classifications of various indigenous communities and the interpretations of ‘indigeneity'in the two countries have presented problems in the context of ICH protection. The state is regarded as holding the intellectual property rights for some forms of ICH and this also posed problems in the implementation of the laws to protect the communities'ICH. This book employs a community-based perspective and adopts a multidisciplinary approach in exploring questions of the rights to and benefits of heritage.This book will be useful for students, academics and policy makers with an interest in international law, heritage and intellectual property rights.

First published in 2002, Using International Law in Canadian Courts remains the only complete account of how public international law is received into the law of Canada. Drawing on authorities ranging from eighteenth-century English case law to contemporary Charter jurisprudence, Gib van Ert aims to show litigants and judges how public international legal norms may—and may not—be used in Canadian courts. No familiarity with international law is required; van Ert begins with an introduction to the international legal system and goes on to elucidate such questions as the relevance of international agreements to judicial decision- making, the place of customary international law in Canadian law, and the role of international human rights norms in Charter interpretation. The approach is practical and the analysis driven by case law. Yet van Ert's exhaustive treatment of the constitutional, statutory, and common law rules of Canadian reception law will also interest academics and students. This third edition brings the book up to date with leading Supreme Court of Canada decisions while adding new discussions on such topics as executive certificates; internationally informed objections to court jurisdiction; non-binding arrangements between states; Empire treaties; treaty implementation through peace, order, and good government; treaty de-implementation; and Canada's reception of the United Nations Declaration on the Rights of Indigenous Peoples.

It took more than one hundred years for federal, state, and local governments to recognize the Saginaw Chippewa Tribe's claim to its Isabella Reservation in central Michigan. This book tells the story of how the tribe persevered and eventually succeeded in having the reservation recognized. It is the story of widespread fraud and oppression perpetrated by non–Native Americans seeking to clearcut the rich Chippewa forest for quick profits, despite the federal government's solemn promises of protection made to the Saginaw Chippewa nation in treaties. In its account of the legal battle over the Isabella Reservation, A Reservation Undiminished explores what Native sovereignty actually means. The authors, three key participants in the case, give an inside view of the case and its historical context. When it began to take shape in 2005, lawyers for five different jurisdictions hired historians and anthropologists to evaluate the Saginaws'claim and serve as expert witnesses. Two of those historians, Gary C. Anderson and R. David Edmunds, reveal the importance of archival research in demonstrating governments'continual references to the Saginaw Chippewas'reservation long after 1875, when the state claimed it ceased to exist. Attorney Todd Adams, who represented the state of Michigan in the case, explores what happened after the state settled with the Saginaw in 2010. He recounts the unlikely collaboration of all parties in resolving the conflict.A Reservation Undiminished presents a cohesive narrative of a legal case that testifies to Native persistence in asserting territorial sovereignty in the twenty-first century—and that highlights the potential for conflict resolution in seemingly intractable legal struggles between state, local, and tribal governments.

Nearly every American Indian tribe has its own laws and courts. Taken together, these courts decide thousands of cases. Many span the full panoply of law, from criminal, civil, and probate cases to divorce and environmental disputes. The Third Edition of American Indian Tribal Law surveys the full spectrum of tribal justice systems. With cases, notes, and historical context, this text is ideal for courses on American Indian Law or Tribal Governments, and an essential orientation to legal practice within tribal jurisdictions.New to the Third Edition: New materials on Anishinaabe jurisprudence Additional materials on tribal laws incorporating Indigenous language and culture Recent and noteworthy cases from tribal courts Additional examples from tribal justice systems and practice Professors and students will benefit from: A broad survey of dispute resolution systems within tribal jurisdictions A review of recent flashpoints in tribal law Cases and material reflecting a wide range of American Indian tribes and legal issues Excerpts and commentary from a wellspring of current scholarship

As the cruel South Dakota winter thawed toward the end of February 1976, a rancher on Pine Ridge Indian Reservation discovered the frostbitten corpse of a Jane Doe at the bottom of a 30-foot cliff, 100 feet from a state highway. An autopsy determined she had died of exposure, while the FBI sent her severed hands to Washington for analysis.Weeks later, a match of fingerprints to feisty American Indian Movement (AIM) activist Anna Mae Pictou-Aquash led to exhumation and another autopsy, this time revealing that she had been shot in the head. Those sympathetic to AIM assumed hers was simply one of nearly 200 unsolved murders during an era when the Reservation was held secretly under martial law, now known as the Reign of Terror.Months before Aquash's murder, a deadly gun battle between AIM members and two young FBI agents forced her to flee with her friend and fellow agitator Leonard Peltier. Although Peltier always denied FBI claims that he was the one who delivered coup de grâ ce shots to the agents, he was eventually convicted of double murder. This prompted unsuccessful popular movements for a Presidential pardon as inept lies from both sides helped stalemate any legal or political progress. As the new millennium approached, a heroin addict coached by two zealous FBI agents stepped forward claiming he witnessed Aquash's murder at the hands of an AIM executioner, John Graham. Like so many haphazard and contradictory acquittals and convictions related to the deaths of Aquash and the two FBI agents, Graham's procedurally esoteric case may suggest that the American legal system has become too obtuse and unpredictable. An international community looks nervously on, wondering if Peltier will die in prison as Graham now suffers a similar fate.

The Rights of Indians and Tribes explains Federal Indian Law in a conversational manner, yet is highly authoritative, containing over 2000 footnotes with citations to relevant court decisions, statutes, and agency regulations. Since its initial publication in 1983 it has sold over 150,000 copies. It is user-friendly and particularly helpful for tribal advocates, students, government officials, lawyers, and members of the general public. The book uses a question-and-answer format and covers every important subject impacting Indians and tribes today and discusses which governments-tribal, state, and federal-have authority on Indian reservations. This fully-updated fifth edition provides a Foreword by John Echohawk, Director of the Native American Rights Fund, and covers the most significant legal issues facing Indians and Indian tribes. This includes the regulation of non-Indians on reservations, definitions of important legal terms, Indian treaties, the Indian Civil Rights Act, the Indian Gaming Regulatory Act, and the Indian Child Welfare Act.

As a settler state, Canada's claims to sovereign control over territory are contested by Indigenous claims to land and to self-determination. Indigenous Peoples and the Future of Federalism presents legal analyses that explore forms of federalism and their potential to include multiple and divided sovereignties. This collection aims to advance reconciliation with Indigenous peoples in Canada and elsewhere by developing jurisprudence on the possibilities for a nation-to-nation relationship between Indigenous nations and Crown sovereignty. Contributors use legal creativity to explore how federalism can be structured to include the constitutional jurisdiction of Indigenous nations. Several chapters are grounded in the Canadian context while others connect the issues to international law and other settler colonial jurisdictions, recognizing how Indigenous resistance to settler laws and government decisions can at the same time be the enactment of Indigenous legalities and constitutional cultures. Ultimately, Indigenous Peoples and the Future of Federalism offers innovative ways for Canada to move forward from this challenge using existing constitutional mechanisms to give life to a plurinational Canadian federalism inclusive of the jurisdiction of Indigenous peoples.

Argues that a refined concept of culture can be used by American courts to better analyze cases that cover the sense of community.Supreme Court Justices frequently justify their opinions in terms of the traditions and customs of a community. Yet, the rights and interests of entities that fit neither with the state nor the individual are treated as fluid and subjective, often existing without clarity in the current legal framework. The Rights of Groups focuses on a series of specific examples to argue that a more refined concept of culture than has been employed by American courts could offer better ways to analyze a broad range of cases that employ the notion of community.Through an original reading of the Ninth Amendment, Lawrence Rosen illustrates how a constitutional consideration for group protections might be applied to decisions arising before the Supreme Court, including the decision to overturn Roe v. Wade. Similarly, in other chapters, Rosen shows how a revised theory of culture can change the concepts—including those of “community”—that courts currently apply, whether it is the application of indigenous concepts of value to revise the statutes governing intellectual property, the importance to native peoples that burial remains be returned to the group, the role a community can play in the responsibilities attendant on the prudent investor rule, the cultural organization of Western states'water resources, or the implementation of a new basis for group defamation suits. The book thus concludes with a call for a more sophisticated concept of culture that can sharpen our usage of the legitimate rights and interests of those entities that fit neither with the state nor the individual.

In 1974, Judge George Boldt issued a ruling that affirmed the fishing rights and tribal sovereignty of Native nations in Washington State. The Boldt Decision transformed Indigenous law and resource management across the United States and beyond. Like Brown v. Board of Education, the case also brought about far-reaching societal changes, reinforcing tribal sovereignty and remedying decades of injustice.Eminent legal historian and tribal advocate Charles Wilkinson tells the dramatic story of the Boldt Decision against the backdrop of salmon's central place in the cultures and economies of the Pacific Northwest. In the 1960s, Native people reasserted their fishing rights as delineated in nineteenth-century treaties. In response, state officials worked with non-Indian commercial and sport fishing interests to forcefully—and often violently—oppose Native actions. These “fish wars” spurred twenty tribes and the US government to file suit in federal court. Moved by the testimony of tribal leaders and other experts, Boldt pointedly waited until Lincoln's birthday to hand down a decision recognizing the tribes'right to half of the state's fish. The case's long aftermath led from the Supreme Court's affirmation of Boldt's opinion to collaborative management of the harvest of salmon and other marine resources.Expert and compelling, Treaty Justice weaves personalities and local detail into the definitive account of one of the twentieth century's most important civil rights cases.

This book develops a theory of collective empowerment that looks for change both from the bottom up, in civil society, and from the top down, from state interventions responding to such pressure.Reflecting on the advancement of Indigenous and peasant movements in Latin America since the neoliberal reformation of capitalism in the 1980s, the book outlines a path for progressive social action in which bottom-up pressure by social movements can help progressive parties to gain state power. The book considers how Indigenous and peasant movements in Argentina, Bolivia, Brazil, Ecuador, and Mexico have tried to reshape crucial structures of society from the bottom up. While this mobilization from below is critical and necessary, the book argues that these movements must be supplemented by top-down change from progressive state interventions, as happened mostly in Bolivia and Brazil. The authors conclude that progressive societal action can have massive impact in transforming some of the main socioeconomic structures that determine humans'relation to the extraction of natural resources, income and wealth inequality, and even the location of a nation's insertion in world capitalism.This book will be an important resource for social-movement activists and for researchers working in political sociology, sociological theory, political studies, development studies, social movements, and Latin American Studies.

Historically, Indigenous artistic, cultural, and societal expression has been identified and examined within Canadian or international legal regimes. This book identifies Indigenous intellectual property concerns as an Indigenous legal issue to be taken seriously within specific Indigenous legal orders. Indigenous Intellectual Property opens up complex discussions about existing Indigenous intellectual property law, and avoids the tendency to pigeonhole Indigenous intellectual property into a Western legal model. Drawing on diverse case studies, this book considers the existing laws in the Gitxsan, Secwepemc, and Hupacasath (Nuu-chah-nulth) legal orders, as well as from the Solomon Islands and Hawai'i. The case studies are grounded in their respective legal and oral histories, and contextualized within a broader discussion of Indigenous law, addressing issues of colonial myths, shrinking conceptions of Indigenous law, common resistances to Indigenous property and law, and important connections between Indigenous law and governance and citizenship. The book carefully considers how the governance and civic value of intellectual property points to the unsuitability of the current state and international intellectual property legal regimes to many Indigenous intellectual property concerns. Ultimately, Indigenous Intellectual Property reveals the various ways in which to identify and understand law within Indigenous societies – through narrative and story analysis, observations of practices and ceremonies, and political and legal ordering.

In Bribed with Our Own Money David R. M. Beck analyzes the successes and failures of Indigenous nations'opposition to federal policy in the 1950s and 1960s. Focusing on case studies from six Native nations, Beck recounts how the U.S. government coerced American Indian nations to accept termination of their political relationship with the United States by threatening to withhold money that belonged to the tribes. Termination was the continuation—and, federal officials hoped, the culmination—of more than a century of policy initiatives intended to end the political relationship between Indian tribal nations and the federal government. Termination was also intended to assimilate American Indian individuals into the country's social and economic culture and to remove the remainder of reservation lands from federal trust. American Indians hoped to gain greater opportunities of self-governance and self-determination, but they wanted to do so under the protection of the federal trust relationship.Bribed with Our Own Money analyzes both successful and unsuccessful efforts of Native nations to oppose this policy within the larger context of long-standing federal abuse of tribal funds. It is the first book to view federal termination efforts grounded in bribery for what they were: a form of coercion.

Examining the restitution of cultural property to Indigenous Peoples in human rights law, this book offers a detailed analysis of the opportunities and constraints of international law as a tool of resistance and social transformation for marginalized groups.In accordance with an increasing insistence on respect for diverse cultures, and through their own international mobilization, Indigenous Peoples have participated in the construction of a distinct human rights framework. Significant academic inquiry has focused on the substantive gains made by Indigenous Peoples in this context, along with its impact on a body of law that had previously denied Indigenous Peoples a basis for claims to their own cultural materials and practices. Accordingly, this book acknowledges that Indigenous Peoples, as non-state actors, have generated greater substantive and procedural legitimacy in human rights law making. Offering normative insights into the participation of non-state actors in international law making, however, it also demonstrates that, despite their significant role in constructing the legal framework of human rights in the 21st century, the participation of Indigenous Peoples continues to be structurally limited.With its interdisciplinary approach to the field, this book will appeal to scholars and students in the fields of law, politics, anthropology and indigenous studies.

Elgar Advanced Introductions are stimulating and thoughtful introductions to major fields in the social sciences, business and law, expertly written by the world's leading scholars. Designed to be accessible yet rigorous, they offer concise and lucid surveys of the substantive and policy issues associated with discrete subject areas.In this vital Advanced Introduction, Dinah Shelton and Federico Guzman Duque examine the human rights of indigenous peoples and communities under current international law. Setting out a historical overview of the legal treatment of native populations from the colonial period to the present, the authors deftly analyse frameworks of institutions monitoring indigenous human rights, theoretical issues relating to these, access to justice and reparations, and special considerations afforded to specific indigenous communities.Key Features:Surveyance of the jurisprudence of all major regional human rights systems, including UN-Charter based and UN-treaty bodiesAnalysis of indigenous rights case law adopted by international bodies, with emphasis on leading and ground-breaking rulingsSpecial focus on less-understood emerging aspects of the law, including the situation of hunter-gatherers and pastoralists, the nuances of territorial rights, and the impacts of violence and armed conflict upon indigenous existencesProviding a panoramic view of a complex and rapidly evolving subject, this Advanced Introduction will prove a crucial read for legal practitioners and public officials, as well as indigenous leaders and human rights defenders. It will also appeal to students, scholars and researchers of human rights law, and law and society.

This book addresses the rights of indigenous peoples to marine space and associated marine resources under international law.Examining the rights of indigenous peoples relating to marine space and marine resources both in international human rights law and the law of the sea, the book provides an in-depth critical analysis of the existing legal framework, whilst identifying the gaps, and possible further mechanisms, for recognizing the rights of indigenous peoples to marine space. The book addresses three main issues: 1) the extent to which international law recognizes and protects the rights of indigenous peoples in relation to marine space and marine resources; 2) if and how the law of the sea and international human rights law pertaining to the rights of indigenous peoples to marine space and marine resources interact; 3) whether and to what extent the law of the sea regime limits the capacity of coastal States to recognize and implement the rights of indigenous peoples relating to marine space and resources. In response, and in a context where indigenous marine rights are under increasing threat, the book develops an important critical theoretical and methodological approach which moves beyond the current doctrinal focus of much existing work in this area.The book will appeal to academics, researchers, and practitioners in the areas of indigenous peoples and the law, international law, the law of the sea, and human rights.

The development of the Canadian criminal justice system has been central to the dispossession of Indigenous populations and the safeguarding of colonial relations of power. Through the mechanisms of surveillance, segregation, and containment, the justice system ensures that Indigenous peoples remain in a state of economic deprivation, social isolation, and political subjection. Contributors to this volume examine historical expressions and ongoing reinforcement of settler colonialism with a view to illuminating how it manifests in contemporary police actions and criminal proceedings. Using an anti-colonial lens, alternative conceptualizations and practices of justice are explored. The volume includes testaments from Indigenous people currently in federal penitentiaries across Canada that show current penal and carceral arrangements for Indigenous people.

The Routledge Handbook of Law and the Anthropocene provides a critical survey into the function of law and governance during a time when humans have the power to impact the Earth system.The Anthropocene is a “crisis of the earth system.” This book addresses its implications for law and legal thinking in the twenty-first century. Unpacking the challenges of the Anthropocene for advocates of ecological law and politics, this handbook pursues a range of approaches to the scientific fact of anthropocentrism, with contributions from lawyers, philosophers, geographers, and environmental and political scientists. Rather than adopting a hubristic normativity, the contributors engage methods, concepts, and legal instruments in a way that underscores the importance of humility and an expansive ethical worldview. Contributors to this volume are leading scholars and future leaders in the field. Rather than upholding orthodoxy, the handbook also problematizes received wisdom and is grounded in the conviction that the ideas we have inherited from the Holocene must all be open to question.Engaging such issues as the Capitalocene, Gaia theory, the rights of nature, posthumanism, the commons, geoengineering, and civil disobedience, this handbook will be of enormous interest to academics, students, and others with interests in ecological law and the current environmental crisis.

Witness to the Human Rights Tribunals offers a behind-the-scenes account of the difficulties facing Indigenous people in human rights tribunals, and the struggles of experts to keep their own testimony from being undermined.

“At the end of the Trail of Tears there was a promise,” U.S. Supreme Court Justice Neil Gorsuch wrote in the decision issued on July 9, 2020, in the case of McGirt v. Oklahoma. And that promise, made in treaties between the United States and the Muscogee (Creek) Nation more than 150 years earlier, would finally be kept. With the Court's ruling, the full extent of the Muscogee (Creek) Reservation was reaffirmed—meaning that 3.25 million acres of land in Oklahoma, including part of the city of Tulsa, were recognized once again as “Indian Country” as defined by federal law. A Promise Kept explores the circumstances and implications of McGirt v. Oklahoma, likely the most significant Indian law case in well over 100 years. Combining legal analysis and historical context, this book gives an in-depth, accessible account of how the case unfolded and what it might mean for Oklahomans, the Muscogee (Creek) Nation, and other tribes throughout the United States. For context, Robbie Ethridge traces the long history of the Muscogee (Creek) Nation from its inception in present-day Georgia and Alabama in the seventeenth century; through the tribe's rise to regional prominence in the colonial era, the tumultuous years of Indian Removal, and the Civil War and allotment; and into its resurgence in Oklahoma in the twentieth and twenty-first centuries. Against this historical background, Robert J. Miller considers McGirt v. Oklahoma, examining important related cases, precedents that informed the Court's decision, and future ramifications—legal, civil, regulatory, and practical—for the Muscogee (Creek) Nation, federal Indian law, the United States, the state of Oklahoma, and Indian nations in Oklahoma and elsewhere. Their work clarifies the stakes of a decision that, while long overdue, raises numerous complex issues profoundly affecting federal, state, and tribal relations and law—and will continue to do so for the foreseeable future.

For the Cherokee Nation, the Civil War was more than a contest between the Union and the Confederacy. It was yet another battle in the larger struggle against multiple white governments for land and tribal sovereignty. Cherokee Civil Warrior tells the story of Chief John Ross as he led the tribe in this struggle. The son of a Scottish father and mixed-blood Indian mother, John Ross served the Cherokee Nation in a public capacity for nearly fifty years, thirty-eight as its constitutionally elected principal chief. Historian W. Dale Weeks describes Ross's efforts to protect the tribe's interests amid systematic attacks on indigenous culture throughout the nineteenth century, from the forced removal policies of the 1830s to the exigencies of the Civil War era. At the outset of the Civil War, Ross called for all Cherokees, slaveholding and nonslaveholding, to remain neutral in a war they did not support—a position that became untenable when the United States withdrew its forces from Indian Territory. The vacated forts were quickly occupied by Confederate troops, who pressured the Cherokees to align with the South. Viewed from the Cherokee perspective, as Weeks does in this book, these events can be seen in their proper context, as part of the history of U.S. “Indian policy,” failed foreign relations, and the Anglo-American conquest of the American West. This approach also clarifies President Abraham Lincoln's acknowledgment of the federal government's abrogation of its treaty obligation and his commitment to restoring political relations with the Cherokees—a commitment abruptly ended when his successor Andrew Johnson instead sought to punish the Cherokees for their perceived disloyalty. Centering a Native point of view, this book recasts and expands what we know about John Ross, the Cherokee Nation, its commitment to maintaining its sovereignty, and the Civil War era in Indian Territory. Weeks also provides historical context for later developments, from the events of Little Bighorn and Wounded Knee to the struggle over tribal citizenship between the Cherokees and the descendants of their former slaves.

This book addresses the issue of Indigenous peoples'participation in genetic resource access and benefit-sharing and associated traditional knowledge for self-determination.Genetic resources from nature are increasingly used in global biodiscovery research and development, but they often use Indigenous peoples'traditional knowledge without their consent and without sharing the benefit. The Nagoya Protocol is an instrument of the Convention on Biological Diversity intended to ensure Indigenous peoples'traditional knowledge is used with their prior and informed consent or approval and entails benefit-sharing on mutually agreed terms. Many countries with significant Indigenous populations have signed the Nagoya Protocol and are currently grappling with implementation of its provisions. This book takes up a case study of Australia to demonstrate how Indigenous community governance in settler states can serve as a path to implementing the Nagoya Protocol. Australia's access and benefitsharing framework is globally hailed as best practice, offering lessons for other countries implementing the Nagoya Protocol. Focusing on two Indigenous community organisations in Australia, the book establishes a unique evaluative framework for analysing and differentiating the governance arrangements used by Indigenous communities for facilitating decision-making related to traditional knowledge.This book will appeal to scholars working in the areas of international environmental law, human rights, biotechnology law, and Indigenous legal issues; as well as those directly engaged in implementing access and benefit-sharing measures and developing law reform strategies.

This book offers a comprehensive view of the legal, political, and ethical challenges related to the global regulation of ayahuasca, bringing together an international and interdisciplinary group of scholars. Ayahuasca is a psychoactive brew containing N,N-Dimethyltryptamine (DMT), which is a Schedule I substance under the United Nations Convention on Psychotropic Substances, and the legality of its ritual use has been interpreted differently throughout the world. The chapters in this volume reflect on the complex implications of the international expansion of ayahuasca, from health, spirituality, and human rights impacts on individuals, to legal and policy impacts on national governments. While freedom of religion is generally protected, this protection depends on the recognition of a religion's legitimacy, and whether particular practices may be deemed a threat to public health, safety, or morality. Through a comparative analysis of different contexts in North America, South America, and Europe in which ayahuasca is consumed, the book investigates the conceptual, philosophical, and legal distinctions among the fields of shamanism, religion, and medicine. It will be particularly relevant to scholars with an interest in indigenous religion and in religion and law.

El presente trabajo se compone de tres capítulos,El primero comienza con el tratamiento de la compleja cuestión de las definiciones y un acercamiento al panorama de los pueblos y comunidades indígenas en Europa, América y África, para continuar con la conformación del sistema legal internacional y regional de protección de los derechos de estos pueblos, El segundo capítulo se dedica al estudio de los pueblos y comunidades indígenas en sede judicial, tanto internacional como regional; es decir: tanto ante instancias de Naciones Unidas como en las regionales, europeas, americanas y africanas, Finalmente, en el capítulo tercero se exponen algunas cuestiones actuales como la del uso (y el abuso) de las tierras ancestrales de los pueblos indígenas por razones económicas, entre la vulneración de Derechos Humanos y los crímenes internacionales y la del Fuero Indígena,

This book presents a detailed analysis of the different approaches and measures for implementing the requirements of UNESCO's 2003 Convention on Safeguarding Intangible Cultural Heritage (the Convention) and a practical interpretation of that treaty, based on the experience of States'Parties and other primary actors. The book considers the interests of multiple stakeholders and takes account of how the Convention interacts with other international law regimes pertaining to both human rights and sustainable development.Key Features:Provides clear and concise information of the definition, scope and significance of intangible cultural heritageUtilises a wide-range of case studies to illustrate the application of the Convention on the ground.Considers the position of multiple stakeholders including national heritage organisations and non-state actorsOutlines practical strategies and solutions for protecting and promoting cultural heritage and looks ahead to potential future developments in this field.Easy to follow structure, mapping out the treaty's provisions thematically and highlighting their practical applicationProviding accessible and focused analysis, this book will be essential reading for lawyers and practitioners involved in the protection of intangible cultural heritage from both governmental and non-governmental institutions. The book will also be a valuable resource to academics and researchers working across various disciplines including law, heritage, and anthropology.

This book critically engages the emerging field of global animal law from the perspective of an intersectional ethical framework. Reconceptualising global animal law, this book argues that global animal law overrepresents views from the west as it does not sufficiently engage views from the Global South, as well as from Indigenous and other marginalised communities. Tracing this imbalance to the early development of animal law's reaction to issues of international trade, the book elicits the anthropocentrism and colonialism that underpin this bias. In response, the book outlines a new, intersectional, second wave of animal ethics. Incorporating marginalised viewpoints, it elevates the field beyond the dominant concern with animal welfare and rights. And, drawing on aspects of decolonial thought, earth jurisprudence, intersectionality theory and posthumanism, it offers a fundamental rethinking of the very basis of global animal law. The book's critical, yet practical, new approach to global animal law will appeal to animal law and environmental law experts, legal theorists, and those working in the areas of animal studies and ecology.

Our Laws are forever present and provide the pathways for all Australians to truly learn how to belong to this continent.'- June Oscar'No other current work has been able to so comprehensively explain the significance of traditional law in all its manifestations.'- Henry Reynolds Law is culture, and culture is law. Given by the ancestors and cultivated over millennia, Indigenous law defines what it is to be human. Complex and evolving, law holds the keys to resilient, caring communities and a life in balance with nature. Marcia Langton and Aaron Corn show how Indigenous law has enabled people to survive and thrive in Australia for more than 2000 generations. Nurturing people and places, law is the foundation of all Indigenous societies in Australia, giving them the tools to respond and adapt to major environmental and social changes. But law is not a thing of the past. These living, sophisticated systems are as powerful now as they have ever been, if not more so. Law: The Way of the Ancestors challenges readers to consider how Indigenous law can inspire new ways forward for us all in the face of global crises.

Centering on cases of sexual violence, this book illuminates the contested introduction of British and French colonial criminal justice in the Pacific Islands during the late 19th and early 20th centuries, focusing on Fiji, New Caledonia, and Vanuatu/New Hebrides. It foregrounds the experiences of Indigenous Islanders and indentured laborers in the colonial court system, a space in which marginalized voices entered the historical record. Rape and sexual assault trials reveal how hierarchies of race, gender and status all shaped the practice of colonial law in the courtroom and the gendered experiences of colonialism. Trials provided a space where men and women narrated their own story and at times challenged the operation of colonial law. Through these cases, Gender, Violence and Criminal Justice in the Colonial Pacific highlights the extent to which colonial bureaucracies engaged with and affected private lives, as well as the varied ways in which individuals and communities responded to such intrusions and themselves reshaped legal practices and institutions in the Pacific.With bureaucratic institutions unable to deal with the complex realities of colonial lives, Stevens reveals how the courtroom often became a theatrical space in which authority was performed, deliberately obscuring the more complex and violent practices that were central to both colonialism and colonial law-making. Exploring the intersections of legal pluralism and local pragmatism across British and French colonialization in the Pacific, this book shows how island communities and early colonial administrators adopted diverse and flexible approaches towards criminal justice, pursuing alternative forms of justice ranging from unofficial courts to punitive violence in order to deal with cases of sexual assault.

Cultural Expertise, Law, and Rights introduces readers to the theory and practice of cultural expertise in the resolution of conflicts and the claim of rights in diverse societies.Combining theory and case-studies of the use of cultural expertise in real situations, and in a great variety of fields, this is the first book to offer a comprehensive examination of the field of cultural expertise: its intellectual orientations, practical applications and ethical implications. This book engages an extensive and interdisciplinary variety of topics – ranging from race, language, sexuality, Indigenous rights and women's rights to immigration and asylum laws, international commercial arbitration and criminal law. It also offers a truly global perspective covering cultural expertise in Africa, Asia, Australia, Europe, Latin America, the Middle East and North America. Finally, the book offers theoretical and practical guidance for the ethical use of cultural expert knowledge.This is an essential volume for teachers and students in the social sciences – especially law, anthropology, and sociology – and members of the legal professions who engage in cross-cultural dispute resolution, asylum and migration, private international law and other fields of law in which cultural arguments play a role.The Open Access version of this book, available at www.taylorfrancis.com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license.

This book examines the relationships between theatrical representations and socio-political aspects of Rapa Nui culture from pre-colonial times to the present. This is the first book written about the production of Rapa Nui theatre, which is understood as a unique and culturally distinct performance tradition. Using a multilingual approach, this book journeys through Oceania, reclaiming a sense of connection and reflecting on synergies between performances of Oceanic cultures beyond imagined national boundaries. The author argues for a holistic and inclusive understanding of Rapa Nui theatre as encompassing and being inspired by diverse aspects of Rapa Nui performance cultures, festivals, and art forms. This book will be of great interest to students and scholars of Indigenous studies, Pacific Island studies, performance, anthropology, theatre education and Rapa Nui community, especially schoolchildren from the island who are learning about their own heritage.