Recent uclalaw_ipjlcr items

Front Matter

Fri, 6 Jun 2025 00:00:00 +0000

Front Matter

Federalism & Native Hawaiian Claims: Toward an Equitable and Just Solution

Fri, 6 Jun 2025 00:00:00 +0000

This article discusses a hypothetical case: on behalf of the Native Hawaiian People as a whole, a group of Native Hawaiians has petitioned a Hawai’i State court seeking two declaratory rulings. First, a declaration that Native Hawaiians have not lost their inherent sovereignty as an indigenous people. Second, a declaration that Native Hawaiians collectively retain a beneficial interest in the former Crown Lands of Hawai’i. The article responds affirmatively to those requests, in the form of a draft opinion by a fictional Justice of the Hawai’i Supreme Court. Citing long settled U.S. federalism doctrine, the text explains that the State of Hawai’i possesses concurrent power with the United States to recognize the inherent sovereignty of Native Hawaiians, and to define the legal scope of that sovereignty as a matter of Hawai’i law. Relying upon exisiting Hawai’i legislation, exisiting Hawai’i Supreme Court precedent, and a similar doctrine developed by the Supreme Court of Canada,...

The Dust Follows the Plow

Fri, 6 Jun 2025 00:00:00 +0000

The Dust Follows the Plow

The United Nations Declaration on the Rights of Indigenous Peoples in Defense of the Indian Child Welfare Act

Wed, 17 Jan 2024 00:00:00 +0000

The Indian Child Welfare Act (ICWA) is a law that was passed to address the removal crisis of American Indians from their community to non-Indian families. The removal crisis is a result of centuries of detrimental federal government policies such as assimilation laws and boarding schools and campaigns to “adopt out” Indian children. ICWA has been challenged over the years in court but has prevailed. Although child removal has decreased slightly since its adoption, the data on removal are still shocking and must be addressed. The most recent development in the fight over ICWA is Brackeen v. Bernhardt where a non-Indian adoptive couple is suing over ICWA’s constitutionality under the equal protection clause and Tenth Amendment. Because of the confusion between the lower courts, the case is likely to be decided by the Supreme Court.

Meanwhile, the United Nations Declaration on the rights of Indigenous People (UNDRIP) is an international instrument that was adopted...

Revitalizing Stewardship and Use of Tribal Traditional Territories: Options for Improving California Policy and Law in State-Managed Lands and Waters

Wed, 17 Jan 2024 00:00:00 +0000

California dispossessed Indian tribes of millions of acres in the decades following the State’s founding. Loss of tribal land and waters largely cut off Indian tribes from ancestral territories on which they depend for food, culture and identity. Tribal arguments for rights to these areas outside their reservations have some support in the law, but solutions are better produced in a collaborative process between sovereign Indian tribes and State resource agencies. Recent changes in State policy that seek to remedy historic injustices and respect tribal sovereignty provide opportunities for joint efforts. The authors propose seven options for discussion among Indian tribes and State agencies. The goal is to catalyze a process by which the tribes and agencies may together determine how best to revitalize tribal connections to State lands and waters that formerly belonged to the tribes, but for whom such areas hold cultural and economic significance.

Decolonization of Language Policy in Arctic Canada - Letter to the Editor

Wed, 17 Jan 2024 00:00:00 +0000

Colonialism in northern Canada is not a historical artefact because the bureaucratic structure of colonial government persists. If parts of southern Canada are discussing post-colonial frameworks, then we must consider that the northernmost Territory of Nunavut ("our land") is in a syn-colonial condition and the present trend is for it to continue. Canada endorsed the United Nations Declaration on the Rights of Indigenous People in 2016 and enacted it in 2021. If Canada is truly committed to a philosophy of reconciliation and decolonization, then it will make policy changes in the north that follow a guiding principle of self-determination for indigenous people. The simplest changes would be 1) to deliver more Inuktut instruction in schools and 2) to add knowledge of Inuktut to the essential hiring criteria for the entire Government of Nunavut (GN).

Eagle Permits, RFRA, and American Indian Religious Freedom: Legal Avenues for First Amendment Protection

Wed, 17 Jan 2024 00:00:00 +0000

Built on a colonial discourse of justifiable Christian conquest, United States federal Indian law and policies have specifically targeted American Indian religious practices as a way to assimilate American Indians into the dominant colonizing culture and to undermine tribal sovereignty. Federal policies throughout colonization and into the present have drastically swung between denying American Indian religious practice and allowing for it under federal control, creating a confusing string of conflicting precedent. Although the worst of these practices has largely been abandoned, the paternalism of the United States government continues today with the creation and oversight of a permit system, which regulates the use and possession of bald and golden eagle feathers and parts (hereafter “eagles”). This article explores the history of federal policies aimed at American Indian religious practices to demonstrate the ways in which American Indian religious freedom law has been built...

E PULE KĀKOU! (LET US PRAY!): Constitutionality and Practicability of Public School Sponsored Native Hawaiian Prayers

Wed, 17 Jan 2024 00:00:00 +0000

This article argues that the state of Hawai’i should encourage and provide legislative protection for practicing pule in K-12 public schools on a regular basis for cultural and educational purposes. The Hawai’i state constitution should have specific provisions regarding the time, venue, and practitioners of pule. Hawai’i state laws should provide greater protection of Native Hawaiian religious rights than federal laws. Part II introduces the educational and cultural values of pule, its connection with ‘Ōlelo Hawai’i (Native Hawaiian language) from the past to present, and pule practices as educational programs at public schools can contribute to the Third Hawaiian Renaissance. Part III reviews the current Hawai’i state law protection of pule in public schools under constitutional, administrative, and judicial power, and examines what can be done in order to extend these protections. Part IV scrutinizes the challenges from...

Front Matter

Wed, 17 Jan 2024 00:00:00 +0000

Front Matter

Reframing "Art" to Art: Deterring Looters and Injecting Contemporary Native American Art Through Charitable Deductions

Tue, 25 Oct 2022 00:00:00 +0000

American museums adorn their exhibitions with the cultural heritage belongings of Indigenous peoples from around the world. The collectors, not the belongings' originating communities, typically makes these donations and benefit from fair market charitable deductions. All the while contemporary Native American artists wish to share their experiences and stories, yet artists only receive a charitable deduction equivalent to their basis in creating the artworks when donating to museums. This Article demonstrates how potential modifications to the Internal Revenue Service's Art Advisory Panel may deter looters from desecrating archaeological sites and illustrates how passage of the Artist-Museum Partnership Act would inject contemporary Native American art into American museums.

Of Reservation Boundary Lines and Judicial Battle Lines, Part 1—Reservation Diminishment/Disestablishment Cases from 1962 to 1975: The Indian Law Justice Files, Episode 1

Wed, 31 Aug 2022 00:00:00 +0000

This Article is the first of a two-part investigation into the Indian law doctrine of reservation diminishment/disestablishment, examining Supreme Court decisions in this area in light of insights gathered from the collected papers of individual Justices archived at the Library of Congress and various university libraries. The Article first addresses Seymour v. Superintendent (1962) and Mattz v. Arnett (1973), observing that these first two diminishment/disestablishment cases are modern applications of basic, longstanding principles of Indian law which are highly protective of Indigenous people’s rights and tribal sovereignty. The Article then examines in detail DeCoteau v. District County Court, the anomalous 1975 decision in which the Supreme Court held that an 1889 land-sale agreement between the United States and the Sisseton-Wahpeton Dakota Indians, which Congress ratified in 1891, had abolished the boundaries of the Lake Traverse Reservation in South Dakota and North Dakota,...

Reframing Kānāwai: Towards a Restorative Justice Framework for Indigenous Peoples

Mon, 25 Apr 2022 00:00:00 +0000

This article introduces a developing analytical framework for decolonizing legal education, critical analysis, and advocacy from and for Native communities. The second edition of Native Hawaiian Law: A Treatise, the definitive resource for understanding both historical and emerging legal issues affecting Kānaka Maoli (Native Hawaiians), will employ this contextual inquiry framework to encourage academic discourse and critical thinking about not only what the law is, but what it should be. The Treatise's contextual framing is born from the idea that legal analysis cannot focus solely on "traditional" notions of rights because such notions are grounded in western concepts of property that are not universally applicable, especially in Hawai'i.

Sami Peoples Land Claims in Norway, Finmark Act and Providing Legal Title

Mon, 25 Apr 2022 00:00:00 +0000

The Sami, who straddle three Nordic countries and the Russian Federation, are an Indigenous people who have lived on their lands since time immemorial. The legal framework that governs them must take into consideration that they are a semi-nomadic people, as some of their population live in settled communities while some practice a nomadic lifestyle. Their land use bears similarities to those of the indigenous peoples of the United States, Canada and Australasia in terms of grazing and living in harmony with the environment. The Sami have been granted a dispensation that provides them partial sovereignty through the establishment of Parliamentary Assemblies in Norway, Sweden, and Finland. The establishment of these new bodies has not dissipated their need to assert ownership over land and to resist industrial exploration owing to the grant of mineral licenses that have viscerated their rights. The issue is whether the Sami can achieve restitution by an assertion of full title...

Front Matter

Mon, 25 Apr 2022 00:00:00 +0000

Front Matter

Editorializing ICWA: 40 Years of Colonial Commentary

Mon, 25 Apr 2022 00:00:00 +0000

"Sacrificing Indian Childrens' Rights"

"Paleface Paternalism"

"Justice Massacred"

"Ethnic Errancy"

"Rose Parade Indian-givers"

"Slaves to the tribe"

"Tribal bigotry"

"Kids pay the price for tribes"

The phrases listed above are published titles of newspaper editorials and op-ed essays challenging the legitimacy of the federal Indian Child Welfare Act ("ICWA") in the last 40 years. ICWA is a federal law originally passed in 1978 to address the high rate of removal (and subsequent adoption) of Indian children by state authorities. In passing the law, Congress found "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children." While there was no significant controversy about the law when it was drafted and passed with unanimous consent in 1978, the application of the law over the past 40 years, the law has come under sustained attack from scholars, attorneys, legislators,...

Foundations of Tribal Society: Art, Dreams, and the Last Old Woman

Mon, 25 Apr 2022 00:00:00 +0000

The Last Old Woman is a story written in the traditional Euchee de'ela style. These de'ela, told in our language, often involved animals, usually told to children. Unfortunately, these are seldom heard any more for many reasons, not the least of which is the changing, or disappearing, structure of Euchee society. This de'ela is a parable about what can happen when we no longer tell our stories, no longer use our language, no longer gather together to remember. The story illustrates how simple structures within our traditional tribal society may require explanation to those not of our tribal society, sometimes including own people. When we discuss traditional people and their beliefs rarely do we articulate the issues using the forms to which they themselves subscribe. Forms matter, process matters.

Following the Last Old Woman an essay lays out how art, language and ceremony comprise our tribal societies. But these cannot exist individually...

Lost in Translation: A translation that set in motion the loss of Native American spiritual sites

Mon, 25 Apr 2022 00:00:00 +0000

There is no word for religion in most Native American languages. The Native American connection to the natural environment is cultural, traditional, and ceremonial. It is, often, linked to sovereignty and tribal governance, but is it a religion as the term is understood from a western viewpoint?

Mon, 25 Apr 2022 00:00:00 +0000

Table of Contents

Letter to the Editor: Aloha ‘Āina

Thu, 17 Dec 2020 00:00:00 +0000

Letter to the Editor: Aloha ‘Āina

Branding and Commercialisation of Traditional Knowledge and Traditional Cultural Expressions: Customary Law of North East vis-à-vis Contemporary Law

Thu, 17 Dec 2020 00:00:00 +0000

Branding and Commercialisation of Traditional Knowledge and Traditional Cultural Expressions: Customary Law of North East vis-à-vis Contemporary Law

Broadband Internet Access: A Solution to Tribal Economic Development Challenges

Thu, 17 Dec 2020 00:00:00 +0000

Broadband Internet Access: A Solution to Tribal Economic Development Challenges

International Traditional Knowledge Protection and Indigenous Self Determination

Thu, 17 Dec 2020 00:00:00 +0000

International Traditional Knowledge Protection and Indigenous Self Determination

Front Matter

Thu, 17 Dec 2020 00:00:00 +0000

Front Matter

Thu, 17 Dec 2020 00:00:00 +0000

Table of Contents

E OLA KA ‘ŌLELO HAWAI‘I: Protecting the Hawaiian Language and Providing Equality for Kānaka Maoli

Thu, 17 Dec 2020 00:00:00 +0000

Hawai‘i’s history is one like many other indigenous communities across the globe: a colonizing regime actively assisted in the illegal overthrow of another internationally recognized sovereign government. Following the American overthrow in Hawai‘i, the new regime implemented laws in effect banning the teaching of the indigenous language, ‘Ōlelo Hawai‘i—an act of assimilation that tore the fabric of Hawaiian culture and society. Since the overthrow in 1893, and the near death of ‘Ōlelo Hawai‘i, Native Hawaiians have been seeking justice. Over time, the State of Hawai‘i and the United States made some efforts to try to resolve these historical injustices and provide equality for the Native Hawaiian people. In 1978, for example, the people of the State of Hawai‘i ratified constitutional amendments that tried to revive ‘Ōlelo Hawai‘i. The amendments included making ‘Ōlelo Hawai‘i an “official” language of the State and encouraging the teaching and use of ‘Ōlelo Hawai‘i. ...

Money Talks, Banks are Talking: Dakota Access Pipeline Finance Aftermath

Thu, 17 Dec 2020 00:00:00 +0000

This Article provides a Dakota Access Pipeline (DAPL) finance and divestment campaign retrospective. The Article explains: 1) how DAPL was financed, highlighting the dynamic in which banks take fees for the privilege of financing and refinancing pipeline debt; and 2) how joint venture ownership structures and corporate finance arrangements buffered against efforts to hold DAPL banks accountable. At the same time, many of the same banks finance gun industry and prison industry growth, alongside increased police militarization. Although, intersectional visibility of these financial ties is a start, victims of the financial industry lack enforceable corporate accountability mechanisms for seeking redress. DAPL banks managed to deflect divestment pressure and avoid meaningful remedial actions. These observations point to the need for systemic changes in corporate accountability mechanisms but also to reclaim and reimagine a world outside of capital, of future self-determined...

Call to Arms

Thu, 17 Dec 2020 00:00:00 +0000

Call to Arms

Mon, 11 Mar 2019 00:00:00 +0000

Table of Contents

Front Matter

Mon, 11 Mar 2019 00:00:00 +0000

Front Matter

Maasai Resistance to Cultural Appropriation in Tourism

Mon, 11 Mar 2019 00:00:00 +0000

Maasai Resistance to Cultural Appropriation in Tourism

The Doctrine of Discovery: The International Law of Colonialism

Mon, 11 Mar 2019 00:00:00 +0000

The Doctrine of Discovery: The International Law of Colonialism

Introduction: Global Dimensions of Indigenous Self-Determination

Mon, 11 Mar 2019 00:00:00 +0000

Introduction: Global Dimensions of Indigenous Self-Determination

'Paradigm Wars' Revisited: New Eyes on Indigenous Peoples' Resistance to Globalization

Mon, 11 Mar 2019 00:00:00 +0000

'Paradigm Wars' Revisited: New Eyes on Indigenous Peoples' Resistance to Globalization

Gallery II