scholarly journals Clarifying Limbo: Disentangling Indigenous Autonomy from the Mexican Constitutional Order

2016 ◽  
Vol 8 (1) ◽  
pp. 36-52 ◽  
Author(s):  
Ian Flannigan Sprague

Abstract In contrast to U.S. Federal Indian law, which has classified indigenous tribes as “domestic dependent nations” since the early 19th century, Mexican law has only recently begun to define the political and territorial autonomy of indigenous groups. This paper contrasts the Mexican approach to this problem to that of the United States, first describing Mexico’s 2001’s constitutional reforms and their failure to clarify the nature of tribal sovereignty. It then analyzes recent court cases that protect tribal political and territorial autonomy by applying rights to consultation contained in the International Labor Organization’s Indigenous and Tribal People’s Convention 169 (“ILO 169”) and the Mexican Constitution. It concludes by arguing that in spite of this effort by the courts, Mexican law still requires a comprehensive legislative or diplomatic resolution of the lack of clarity surrounding the political and territorial autonomy of its indigenous groups.

2021 ◽  
Vol 2 (2) ◽  
pp. 151-158
Author(s):  
Theodor Gordon

Sovereignty provides the legal basis for tribal casinos in the United States.  However, since the industry’s rapid growth (valued at $34 billion for 2019), courts are now revisiting decades-old precedents in federal Indian law to reinterpret policies in ways that add new constraints to tribal sovereignty.  Because tribal casinos often employ large numbers of non-Native Americans, tribal casino labor relations have become a new arena for contests over the boundaries of tribal sovereignty.  This article investigates recent tribal casino labor relations court rulings (e.g. Little River, Soaring Eagle, and Pauma) through the lens of settler colonialism in order to understand new revisions to legal precedents.  It argues that settler colonialism continues to underlie federal policies and that the growth of tribal casinos reveal that the federal government may intervene to undercut tribal sovereignty.


Author(s):  
N. Bruce Duthu

United States law recognizes American Indian tribes as distinct political bodies with powers of self-government. Their status as sovereign entities predates the formation of the United States and they are enumerated in the U.S. Constitution as among the subjects (along with foreign nations and the several states) with whom Congress may engage in formal relations. And yet, despite this long-standing recognition, federal Indian law remains curiously ambivalent, even conflicted, about the legal and political status of Indian tribes within the U.S. constitutional structure. On the one hand, tribes are recognized as sovereign bodies with powers of self-government within their lands. On the other, long-standing precedents of the Supreme Court maintain that Congress possesses plenary power over Indian tribes, with authority to modify or even eliminate their powers of self-government. These two propositions are in tension with one another and are at the root of the challenges faced by political leaders and academics alike in trying to understand and accommodate the tribal rights to self-government. The body of laws that make up the field of federal Indian law include select provisions of the U.S. Constitution (notably the so-called Indian Commerce Clause), treaties between the United States and various Indian tribes, congressional statutes, executive orders, regulations, and a complex and rich body of court decisions dating back to the nation’s formative years. The noted legal scholar Felix Cohen brought much-needed coherence and order to this legal landscape in the 1940s when he led a team of scholars within the Office of the Solicitor in the Department of the Interior to produce a handbook on federal Indian law. The revised edition of Cohen’s Handbook of Federal Indian Law is still regarded as the seminal treatise in the field. Critically, however, this rich body of law only hints at the real story in federal Indian law. The laws themselves serve as historical and moral markers in the ongoing clash between indigenous and nonindigenous societies and cultures still seeking to establish systems of peaceful coexistence in shared territories. It is a story about the limits of legal pluralism and the willingness of a dominant society and nation to acknowledge and honor its promises to the first inhabitants and first sovereigns.


2008 ◽  
Vol 39 (3) ◽  
pp. 419
Author(s):  
Richard P Boast

One of the best-known discussions of the historical foundations of native title law is Felix Cohen's famous paper on the Spanish Origins of Federal Indian Law, published originally in 1942 and since then reprinted many times.This article cites Cohen's paper in its political and historiographical context, paying particular attention to Cohen's role as one of the architects of the Indian Reorganisation Act of 1934, and considering also shifts in American historiography and legal writing relating to the Spanish legacy as exemplified by legal historians such as James Brown Scott and historians such as H E Bolton. This article also considers fully Cohen's analysis of the precise ways in which Spanish law penetrated the legal framework of Federal Indian Law in the United States and concludes that, as a historical discussion, Cohen's work is in need of substantial revision. In particular Cohen's arguments that Spanish law influenced federal Indian law via international law and by means of judicial consideration of old Spanish land claims seem difficult to sustain.


2020 ◽  
pp. 171-195
Author(s):  
Michael D. McNally

This chapter considers efforts to legislate Native American religious freedom in the American Indian Religious Freedom Act (AIRFA, 1978). Where courts and even common sense have seen AIRFA as a religious freedom statute—as an extension of the legal protections of the First Amendment into the distinctive terrain of Native American traditions—the chapter suggests a different view. If the legal force of “religious freedom” discourse has been only dimly effective for Native sacred claims in courts, this chapter is the one that most pointedly shows how Native peoples drew on the rhetorical power of the sacred and religious freedom to win significant legislative protections specific to Native peoples. It does so through interviews with Suzan Shown Harjo. These interviews show how the remarkable legislative accomplishment of AIRFA and, later, the Native American Graves Protection and Repatriation Act (1990), carry the rhetorical force of religious freedom into the legal shape of federal Indian law, with its recognition of treaty-based collective rights and the United States' nation-to-nation relationship with Native peoples.


Anthropology ◽  
2021 ◽  
Author(s):  
Leo Killsback

Federal Indian law (FIL), also known as American Indian law, is the body of doctrine that regulates the political relationship between American Indian and Alaska Native governments and the federal government. FIL is best understood as the development of this “government-to-government” relationship, which intersects with other bodies of law like constitutional law, criminal law, and environmental law. FIL is comprised of legal doctrines, statutes, judicial decisions, treaties, and executive orders, all of which have direct influences on the rights and sovereignty of Indian tribes. In the United States there are 573 federally recognized tribes that are subject to the rights and privileges, as well as the consequences, of FIL. These federally recognized tribes are the third sovereign authority in the United States—the other two are states and the federal government—that retain inherent rights and that exercise and enjoy sovereignty and self-governance on their own lands. The historical development of FIL in the United States constitutes an important starting point in understanding the special relationship between Indian tribes and the federal government. The origins of FIL lay in three US Supreme Court cases known as the “Marshall trilogy,” after Chief Justice John Marshall, the presiding chief justice of Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832). At that time, the primary questions centered on the sovereign rights of Indian tribes, that is, whether Indians have dominion over themselves and their lands. Throughout the development of FIL, until today, questions of Indian tribal sovereignty—or Indigenous nation sovereignty—remained contentious as Indians continued to fight for treaty rights, autonomy, and self-determination. FIL can be described as a series of wins and losses for American Indians in their fight for sovereign rights. In the end, however, the study of FIL is equally the study of how the United States was able to legally subjugate America’s indigenous peoples and acquire their lands. FIL is basically the study of America’s justification for Native America’s colonization and the genocide perpetrated against American Indians. The literature on FIL or American Indian law is vast, but the most valuable resources are authored by and for attorneys and for students of law. Although the disciplines of Native American and Indigenous studies encompass facets of American Indian and Indigenous peoples’ lives, scholarship in FIL has proven to be beneficial. The resources cited in this article represent some of the widely used texts that provide a solid foundation for studies in FIL.


Author(s):  
William Beinart ◽  
Lotte Hughes

Indigenous peoples have always asserted their territorial, resource and other rights when threatened by encroachment, not least in the settlement colonies covered in this chapter—Canada, New Zealand, and Australia, where they were most dramatically displaced. But in the second half of the twentieth century, the aboriginal inhabitants of these countries reasserted themselves with considerable force and success, using methods very different from those of the earlier actions—including judicial channels unwittingly provided by the colonizers. In the process, displaced and dislocated communities have attempted to repossess ‘stolen’ space—physically, intellectually, and judicially. Reassertion in the United States and these three Commonwealth countries has had global ideological ripples, which is partly why we have chosen to examine them. They also share British-based legal systems and political traditions that indigenous groups have used to good effect. We are focusing here on indigenous communities in the narrower sense, in countries where whites remained the demographic majority. Their challenge was to predominantly anglophone societies, the descendants of British settlers and immigrants who arrived mostly over the last two hundred years. The discussion is limited largely to the environmental aspects of reassertion rather than legal and other ramifications; we will mention important court cases, but not cover all landmark events on the timeline of indigenous struggle. The exploration of patterns of resistance in Chapter 16 covered South Asia and Africa where colonized people remained in the demographic majority and regained political power. Though the reassertions discussed here have strategies and aims in common, they are qualitatively different. They were not so much an attempt, by force if necessary, to repel incomers and the controls they impose (it is far too late for that), or to win overall power in an anti-colonial struggle, as a highly articulate call from the heart for justice, land, and a form of self-determination. Moreover, new movements are increasingly ideological and transnational, involving organized networks that use globalized discourses of discontent. The media, internet, NGOs, and UN fora are their tools of choice, which enable activists to influence the behaviour of states and corporations. Reassertion is the opposite of retreat, one aboriginal response to conquest, and suggests that this modern phenomenon is partly about renewed confidence.


2020 ◽  
pp. 259-294
Author(s):  
Michael D. McNally

This chapter extends the discussion of “Religion as Peoplehood” beyond the very real limits of federal Indian law. It explores the possibilities and drawbacks of increasing appeals to Indigenous rights under international human rights law. The possibilities of the United Nations Declaration on the Rights of Indigenous Peoples are quite rich, as are its implementation apparatus for protecting Native religions under Indigenous rights. However, without having to define them as such, the approach is slow to grow domestic legal teeth in the United States. Its incremental development as authoritative law can, as this chapter shows, be strengthened by making clearer associations with U.S. religious freedom law.


Author(s):  
Waltraud Queiser Morales

Bolivia is in the process of consolidating 36 years of democracy amid important reforms and challenges. Despite a history of colonialism, racist oppression of the indigenous majority, and a national revolution and military reaction, the democratic transition to civilian rule and “pacted” electoral democracy among traditional political parties was established in 1982. The governments of pacted democracy failed to fully incorporate all of Bolivia’s citizens into the political process and imposed a severe neoliberal economic model that disproportionately disadvantaged the poor and indigenous. The constitutional popular participation reforms of 1994–1995 altered the party-dominated pacted democracy and opened up the political system to the unmediated and direct participation of indigenous organizations and popular social movements in local and national elections. Grassroots political mobilization and participation by previously marginalized and excluded indigenous groups and social movements, and the election of their candidates into office increased significantly. Indigenous and social movement protests erupted in the Cochabamba Water War in 2000 against the multinational Bechtel Corporation, and in the Gas War in 2003 against the export and exploitation of Bolivia’s natural gas. These mass demonstrations resulted in the turnover of five presidents in five years. The social and political agitation culminated in the game-changing, democratic election in December 2005 of Juan Evo Morales Ayma, as Bolivia’s first indigenous-heritage president. In office for 14 years, longer than all previous presidents, Morales and the Movement Toward Socialism party launched the “Refounding Revolution,” and passed the new Constitución Política del Estado (CPE), the progressive reform constitution that established a multicultural model of plurinational democracy. The Morales-MAS administration provided unprecedented continuity of governance and relative stability. However, amid charges of interference, relations deteriorated with the United States. And disputes erupted over regional and indigenous autonomy, and extractive economic development in the protected lands of native peoples, especially over the proposed road through the Isiboro Sécure National Park and Indigenous Territory (Territorio Indígena Parque Nacional Isiboro Sécure, TIPNIS). These conflicts pitted highlanders against lowlanders, and divided indigenous organizations and social movements, and the government’s coalition of supporters. Contested term limits for the presidency created another acute and ongoing challenge. President Morales’s determination to run for re-election in 2019, despite constitutional restrictions, further tested the process of change and the resilience of Bolivia’s indigenous and social movement-based democracy.


Nordlit ◽  
2018 ◽  
Author(s):  
Laura Virginia Castor

In a novel critics have described as a "thriller-like" coming-of-age story, Louise Erdrich's The Round House (2012) integrates two apparently conflicting approaches to Native American law. First, Felix S. Cohen's Handbook of Federal Indian Law legitimizes the need for working with allies to Indigenous peoples in developing contextual applications of settler state laws. The second draws on the authority of authorless Anishinaabe stories and dreams. While Cohen and his descendants in tribal law practice are allies to the Anishinabeg, dream narrations by the narrator's grandfather affirm the contemporary vitality of Anishinaabe approaches to justice. Finally, Erdrich's narration suggests why restorative justice for women in Indigenous communities in the United States should matter for her international audience.


Sign in / Sign up

Export Citation Format

Share Document