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Federal public lands in the United States were carved from the territories of Native Nations and, in nearly every instance, required that the United States extinguish pre-existing aboriginal title. Following acquisition of these lands, the federal government pursued various strategies for them, including disposal to states and private parties, managing lands to allow for multiple uses, and conservation or protection. After over a century of such varied approaches, the modern public landscape is a complex milieu of public and private interests, laws and policies, and patchwork ownership patterns. This complexity depends on--and begins with--the history of Indigenous dispossession but subsequent developments have created additional layers of complication. Recently, a broad social movement, captured succinctly by the social media hashtag '#Landback' and including some American Indian tribes, has begun calling for the restoration of the nation's lands to Native ownership, including the transfer of all public lands to tribal hands. This article aims to contextualize and assess the more recent history of the transfer of federal public lands to Indian tribes, which has often taken the form of the United States transferring such lands into trust ownership for the benefit of a particular tribe. The article is the first comprehensive collection and analysis of 44 statutes enacted by Congress from 1970 to 2020 that transfer ownership interests in public lands to federally-recognized Indian tribes. These statutes are bookended by the return of Blue Lake to Taos Pueblo in New Mexico (1970) and the return of the National Bison Range to the Confederated Salish and Kootenai Tribes in Montana (2020). Analysis of these laws surfaces common themes and provisions related to the political dynamics of such congressional actions and the terms of post-transfer tribal or federal management. In particular, the article relies on four primary case studies to provide background, context, and detail in illustrating these themes: (1) Blue Lake on the Carson National Forest to Taos Pueblo, (2) the Western Oregon Tribal Fairness Act, (3) Chippewa National Forest land to the Leech Lake Band of Ojibwe in Minnesota, and (4) the National Bison Range to the Confederated Salish and Kootenai Tribes in Montana. These examples are representative of the larger catalog of transfer statutes and demonstrate the variation and complexity associated with each individual transfer situation. Hopefully, this first-ever collection of these laws will provide a practical grounding and depth of understanding for those considering or advocating for '#Landback.' More broadly, these examples and the common themes that tie them together raise important questions about the historical and continuing patterns of public land ownership and control., INTRODUCTION On July 8, 1970, President Nixon delivered a Special Message to the Congress on Indian Affairs. (1) The President's message marked the culmination of a years-long and major shift [...]

The common law rejects 'Aboriginal sovereignty' as being inconsistent with Crown sovereignty. Yet the common law defines Aboriginal sovereignty' as a single, homogenous sovereignty adverse to the Crown. The position [...]

Native title rights to take resources for unconstrained or commercial purposes were first recognised almost a decade ago, but the significance and uptake of such rights in Australia is now heightened. Resource ownership and management are critical components of global sustainable development and Indigenous interest holders play a key role in that space. The gradual acceptance of resource use by traditional owners in a modern economy reflects more developed trends overseas such as in Canada. Reluctance to concede the commercial exercise of native title rights may be due not only to evidential thresholds (required by state governments to enter consensual determinations), but also concerns about the possible consequential legal impacts for those governments and other interest holders. This article considers potential consequences of recognising native title rights to take resources for any purpose in several developing areas of native title jurisprudence including: quantum of native title compensation, the regulation of native title under resource management legislation enacted since the Native Title Act 1993 (Cth), competing claims to resource ownership and use, and the risks for government where prior assumptions of resource ownership are displaced by determined native title.., I INTRODUCTION Native title content is sourced in the traditional laws and customs of the relevant First Nations group. Section 223 of the Native Title Act 1993 (Cth) ('NTA') captures [...]

Alaska Native corporations face a dilemma. They own land of immense and significant cultural and ecological value. Their lands are critical for maintaining the Alaska Natives' subsistence needs. But they are also corporations established under the law to maximize the economic value of their land holdings to provide financial dividends to their Native shareholders. This paper explores the enhanced federal tax incentive for donations of perpetual conservation easements that became available in 2015 to Alaska Native corporations. The tax incentive offers Alaska Native corporations a way to protect the aboriginal lands conveyed to them under the Alaska Native Claims Settlement Act while reaping the potential economic value of those lands. This paper also summarizes certain legal issues that are likely to occur in donated conservation easement transactions and offers guidance on how to address each issue. These issues include, among others: (1) how to qualify the conservation easement under state and federal law; (2) whether to have a nonprofit land trust, government agency or an Alaska Native tribal entity hold the conservation easement and how to make them eligible to do so; (3) how to handle the fee estates split between the Alaska Native village corporation (typical owner of the surface estate) and the Alaska Native regional corporation (typical owner of the subsurface estate); (4) whether to include subsistence uses as a conservation value to be permanently protected under the conservation easement; (5) how to address certain appraisal rules to properly substantiate the value of the conservation easement for federal charitable deduction purposes; and (6) if some funding is available for the conservation easement, whether and how to structure and substantiate the transaction as a bargain sale under applicable federal tax rules. The authors conclude that under the right circumstances, making use of the enhanced federal tax incentive for conservation easements may be just the tool Alaska Native corporations need to protect the subsistence value of their lands while also boosting their bottom lines., I. INTRODUCTION Land is the gift of our ancestors and the guarantee of our right to continue our subsistence lifestyle. Land is the heart of our culture. Without the land, [...]

Aboriginal and Torres Strait Islander peoples have long called for structural reform to Australia's institutional framework to protect and promote their rights. In recent years, however, state and territory governments have proven more receptive to Aboriginal and Torres Strait Islander peoples' advocacy than the Commonwealth. In this article, we identify and map the return of the states and territories--and the retreat of the Commonwealth--in Indigenous law reform. While substantial progress has been made, significant risks are involved in the pursuit of subnational reform. It remains imperative that the Commonwealth government meaningfully engage with the aspirations of Aboriginal and Torres Strait Islander peoples as recorded in the Uluru Statement from the Heart., I INTRODUCTION In the wake of the historic 1967 referendum extending the Commonwealth Government's legislative power in Indigenous affairs, Prime Minister Harold Holt made a prediction to his Cabinet that [...]

Philosophy professor Timothy Morton uses climate change as his foremost example of what he calls a hyperobject: an object that occupies both more physical space and more time than humans [...]

Introduction European settlement swept across Canada, ignoring Indigenous peoples' existing laws and institutions. Today, two parallel systems of law exist: settler legal systems, which assert Crown sovereignty to all of [...]

This article uses a reconciling sovereignties frame to analyse the initial debates in the 1970s about recognising Aboriginal peoples' relationships to sea country in the Northern Territory ('NT') which culminated in declaring 'sea closures' in the 1980s. Sea closures were unique to the NT and were the first substantive legal mechanism in Australia that recognised a form of Indigenous rights over the sea. Sea closures are still the law 'on the books' in the NT, but they can be seen as a legal and policy failure given that only two were ever declared. However, the history of sea closures reveals assertions of sovereignty made by both Aboriginal peoples and the settler state in legal, sociological and empirical ways. The reconciling sovereignties methodology seeks to analyse interactions between assertions of sovereignty, across time, to identify what was fundamentally at stake during this important part of Australian legal history., I Introduction The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ('ALRA') was at its commencement, and today remains, the most comprehensive Indigenous (1) land rights legislation in Australia. One [...]

This article provides a First Nations standpoint on climate change, informed by human rights law and legal education. It is co-authored by a Yuin woman who is a law academic, a Wirdi man who is a Queens Counsel, and a human rights law academic. The article argues that for any responses to climate change to be effective, they must be grounded in the perspectives, knowledge, and rights of First Nations peoples. The utility of human rights instruments to protect First Nation interests in a climate change milieu is explored at the international and domestic levels. Concomitantly, structural change must begin with the Indigenisation of legal education and the embedding of legal responses to climate change into the law curriculum. A holistic approach is necessary., I INTRODUCTION We acknowledge the First Nations peoples whose sovereignty over the lands now collectively known as Australia has never been ceded. We recognise the Ancestors who fought and died, [...]

This paper offers critical perspectives on engaging Indigenous Peoples land-based practices in the city. Using Winnipeg as its case study, this research identifies Winnipeg and the Red River area as a major pre-settler Indigenous population centre. Through an examination of the making of a peace treaty between the Great Sioux Nation, the Metis, and the Saulteaux at Fort Garry as a moment for exploring the land and waters as sentient entities inviting Indigenous Peoples to gather and engage in political activities. This work provides insights into the way the land and waters convey invitations to other beings, and explores what political values and activities those invitations have the power to encourage. What follows contributes to the ongoing scholarship of reclaiming urban geographies as Indigenous spaces, and challenging the reserve-rural-remote world as an Indigenous space, and the urban as a non-Indigenous space. By thinking about Indigenous politics in the city through the framework of what the land and waters invite, readers will be opened to the potential to transform contemporary inter-Indigenous political and cultural activity in places like Winnipeg. Keywords: Indigenous urban geographies, inter-Indigenous politics, urban land based ways of being, Indigenous diplomacies Cet article offre des perspectives critiques sur l'engagement des pratiques bases sur la terre et les eaux des peuples autochtones dans la ville. En utilisant Winnipeg comme etude de cas, cette recherche identifie celle-ci et la region de la riviere Rouge comme un important centre de population autochtone avant la colonisation. Cette recherche est basee sur l'etude du processus du traite de paix entre la Grande Nation Sioux, les Metis et les Saulteaux de Fort Garry comme un moment pour explorer la terre et les eaux en tant qu'entites sensibles invitant les peuples autochtones a se rassembler et a s'engager dans des activites politiques. Cette etude donne un apercu sur la facon dont la terre et les eaux transmettent des invitations a d'autres etres et explore quelles valeurs et activites politiques ces invitations ont le pouvoir d'encourager. Ce faisant, notre recherche contribue au domaine d'etude visant a reconquerir les 'geographies urbaines' en tant qu'espaces autochtones et de remettre en question le monde des reserves-rurales-eloignees en tant qu'espace autochtone et l'urbain en tant qu'espace non-autochtone. En repensant a la politique autochtone dans la ville a travers le cadre de ce que la terre et les eaux invitent, les lecteurs seront ouverts au potentiel de transformer l'activite politique et culturelle inter-autochtone contemporaine dans des villes comme Winnipeg. Mots-cles: Geographies urbaines autochtones, politiques inter-autochtones, modes de vie urbains bases sur la terre et les eaux, diplomaties autochtones, Introduction Cities within the settler colonial imaginary were, and frequently still are, conceived of as explicitly non-Indigenous places. Large population centres are framed using the language of commerce, intellectual pursuits, [...]

In 2018, Prime Minister Justin Trudeau announced the development of an Indigenous Rights Recognition Framework. The framework is intended to provide a statutory alternative to the time and resource-intensive process of litigating Indigenous rights claims in the courts. The extensive criticisms mounted by Indigenous leaders, activists and legal scholars raise important questions about how Indigenous rights claims are best negotiated and resolved. This article argues that neither judicial nor statutory approaches to Indigenous rights recognition facilitate the substantive, systems-level change that is needed to achieve Canada's objective of meaningful reconciliation. Instead, the Government of Canada can strengthen the proposed approach in the following ways: (1) including proposals for meaningful constitutional amendments; (2) empowering existing judicial processes to incorporate Indigenous legal traditions and harmonize Indigenous, common and civil law traditions; (3) allowing First Nations and Indigenous communities to introduce their own constitutions and giving existing constitutions full legal force and effect; and (4) altering the structure of the alternative dispute resolution body proposed in the framework. KEYWORDS Indigenous rights, Van der Peet, rights recognition, Aboriginal rights, Aboriginal self-governance, juridicial pluralism, I INTRODUCTION 60 II CURRENT LANDSCAPE FOR INDIGENOUS RIGHTS 62 III LEGAL PROOF TO STATUTORY RIGHTS RECOGNITION 66 IV THE CONSTRAINTS OF STATUTORY RIGHTS RECOGNITION 68 V APPLYING A GENERATIVE [...]

This article analyses procedural aspects of the decade-long Mabo litigation, 1982-92. The individual claims made by the five original plaintiffs to, in total, 46 identified areas of land and sea; the results of those claims; and the plaintiffs' various roles at the trial of facts are outlined. Eddie Mabo's leadership and rejection by the trial judge; how two plaintiffs--the Passi brothers--withdrew with one returning; and three plaintiffs dying before final judgment, are mentioned. Unusual procedural steps initiated by the High Court in May 1991--after nine years of litigation--are then examined. Following some judges' suggestions during final oral argument, the plaintiffs' counsel drafted, overnight, and submitted an application to amend the statement of claim. Hitherto pleaded (including at the trial of facts) as a representative action by each plaintiff, on behalf of their respective family groups, the plaintiffs now sought to significantly amend to plead one communal claim to the whole of the three Murray Islands. The Court adjourned without ruling on this very late application. (1) Its final declaration spoke only of 'the Meriam people' enjoying native title to Murray Island. Extensive citations, transcript extracts, and extracts from the Further Amended Statement of Claim are included., I INTRODUCTION On 3 June 1992 the High Court handed down its decision in Mabo v Queensland [No 2] (Mabo [No 2]') declaring that the Meriam people enjoyed native title [...]