Native Law Research Articles

Lex Llewellyn and the Tribal Tax Status Act: 'Fallible Gropings' in Law and Society

This article is the result of our inquiry into two proximate fields in which issues of law, custom and markets arise in sociolegal scholarship and praxis: the mid-20th century jurisprudence of the legal realist Karl Llewellyn and the contemporary debates surrounding efforts by tribal governments in the U.S. to issue tax-exempt bonds. Both are sites for efforts by legal scholars and practitioners to grapple with the convergence of social categories that, until very recently, are normally held apart – Native Americans, law, and commerce. We first explore Llewellyn’s efforts at drafting the Uniform Commercial Code, and the extent to which in this and his The Cheyenne Way (written at virtually the same time), he drew considerable influence from the American pragmatist philosophical tradition. In so doing, we find that his jurisprudence and lawmaking (often maligned for its circular reasoning) can be better understood as an effort to announce a philosophy of law and enact commercial legislation that was more a method for doing legal analysis and taking legal action than it was an expression of legal principles. Once understood in this way, we suggest it offers a fresh way of accounting for the performative force of law that can move sociolegal research beyond certain constructivist impasses. We then offer how such an approach can be brought to bear on the unfolding relationships among custom, law and commerce in the back and forth between scholars, law-makers, and tribal leaders around tribal tax-exempt bonds and their regulation.

Native Law and Customs in a Democratic Setting: (The Nigeria Experience)

The Nigerian Corpus Juris Civilis ‘body of civil law’ vis-a-vis the legal system is consisted of the Received English Law, (which influenced the Constitution of the Federal Republic and other Statutes) and the Native Law (that is the Customary Law and the Islamic Law). However, the domination of the English Common law on the Native law is so enormous that it has put the latter at the verge of extinction. This paper argues that, although, the western oriented legal minds in Nigeria project the English Common Law in the light of civility and modernity, yet, the Native Law which successful governed the country from time immemorial should not be extinguished. The fact remains that, intrinsically, the Law still remains civil in the minds and relationships of the local people. Activities such as marriages, land tenure, commercial transactions are still largely regulated by the Native Law among the people. However, although, the paper agrees that there is need for the review of the law, nevertheless, it maintains that there is reason for its reintroduction de novo as part of the private law in the country. One of such reasons is its flexibility and simplicity. The law is instinctually understandable to the people. Therefore, it should be harmonized in pari passu with prevalent English law to regulate de die in diem ‘the day-to-day’ activities of Nigerians.

Toward the Renaissance of Aboriginal Spiritual Culture

Despite the still-lingering negative image of Aboriginal traditions, the fact is that significant advances have been made in Canada to lift the discussion to another level and to place Aboriginal spiritual perceptions and attitudes into dialogue with Canadian intellectual life. This movement is in tandem with a general sense of renewal and engagement within the Aboriginal community itself...the community itself in renaissance. We deal here with some recent initiatives in Alberta that demonstrate how Indigenous viewpoints are beginning to be addressed by the academy and wider public. Critical, too is the notion expressed by Aboriginal people that the rise of their traditions is a way of addressing pressing social and medical problems. This analysis focuses on two areas of discussion: Aboriginal law and the incorporation of traditional notions into health sciences and medicine. It specifically reviews the approach by traditionalist Wayne Roan in the Albertasource website, examines the health initiatives of the Centre for the Cross-Cultural Study of Health and Healing and initiatives undertaken by Sundance chief and healer, Clifford Cardinal in the curriculum in the Faculty of Medicine and Dentistry at the University of Alberta. It also calls attention to the University of Calgary’s important initiative under the guidance of Peigan physician Dr. Lindsey Crowshoe. The renaissance continues with some of the advances made when traditional healers from across Canada gathered at the University to discuss the boundaries of sharing traditional knowledge with medical institutions. These elements can only be perceived as symbolic of a significantly wider movement.

The Ethos of Canadian Aboriginal Law and the Potential Relevance of Federal Loyalty in a Reconfigured Relationship between Aboriginal and Non-Aboriginal Governments: A Thought Experiment

This paper does not seek to provide a comprehensive analysis of the fiduciary obligation or of the standard of the honour of the Crown, nor does it purport to thoroughly examine the particular normative implications flowing from of each of these juridical concepts. It seeks instead to build on the ethos that has arguably influenced, in the past three decades or so, the evolution of the legal treatment of Aboriginal peoples in Canada, and then to figure out whether it would be possible to push further the normative consequences of this ethos in a reconfigured relationship between Aboriginal peoples and non-Aboriginal governments. The paper’s main hypothesis is that the doctrine of federal loyalty may help us reflect on the possible normative consequences flowing from the establishment of a more egalitarian relationship between Aboriginal and non-Aboriginal governments. This particular focus on federal loyalty stems from the Supreme Court of Canada’s own insistence on loyalty and trust in its case law pertaining to Aboriginal peoples. After mapping the role of trust and loyalty in that field of law (section I), this paper argues that there are some dimensions of federal loyalty that are already recognized to some extent in Canadian law (section II), and that examining the strong interpretation given to this principle in other federations such as Germany might shed light on its normative potential, in addition to highlighting the family resemblances between its ethos and that underlying contemporary Canadian Aboriginal law (section III).

Global Aspects of Australian Aboriginal Law Systems. A Biological Perspective

A new natural law theory was proposed in ‘A Biological Theory of Law’. This theory holds that law mirrors properties of genes. Probably the most distinguishing characteristic of a gene is that it can replicate itself ad infinitum (the genetic priority of growth), as long as there are sufficient molecules available that can feed the replication. On top of that a gene is stable and it bears a code that can generate all kinds of biological structures. These biological structures could not evolve if genes did not work together. Genes that work together in a reciprocal way can be successful in spreading and therefore their number will grow. In essence, biological theory of law is based on fractal patterns. Fractals are objects whose smallest particles have the same structure as the composite whole of these particles. Macro scale patterns mirror micro scale patterns. Consequently, by studying micro scale patterns we can discover forces that drive macro scale patterns.As was shown in the article The Molecular Concept of Law, by recognizing fractal structures in our empiric reality, we can link very different levels and disciplines and subsequently jump from genes to emotions to law in a systematic manner.This paper explores the proposal that due to a harsh environment and geographical isolation, the genetic priority of growth was successfully curbed by Australian Aboriginal law to operate indefinitely and sustainably within a finite biosphere. The genetic drive for growth will ultimately exhaust our resources and defeat the genes of many of us if we do not find a way through our law to steer it. Ultimately the dilemma we face on a global scale is the same as that solved on a continental scale by Indigenous Australians. Central to the success of classical Aboriginal law was the ability to use law to curb the genetic property of growth by elaborating the genetic property of reciprocity, and much could be learned from Aboriginal legal systems in facing our own environmental and social dilemmas.

Ethical and Legal Issues in Biobanking for Genomic Research in Nigeria.

The pursuit of genomic research and biobanking has raised concerns and discussions about the ethical and legal implications. Given the specific challenges that surround such enterprise in low and middle income countries, it is pertinent to examine them in the light of the advent of Biobanking and Genomic research in Nigeria. In this paper I discuss the issues and suggest model solutions derived from advanced jurisdictions. These ethical and legal issues are discussed within the context of the legal system of a typical African country whose jurisprudence derives from that of its erstwhile colonial master, the United Kingdom. This includes issues relating to law and human rights, informed consent, native and customary law.

Recent Judicial Developments of Interest to Energy Lawyers

This article provides an overview of recent judicial developments of interest to energy lawyers. The authors summarize and provide commentary on recent Canadian case law in the areas of: Aboriginal law, administrative law, conflict of laws, contracts, environmental law, freehold leases, rights of first refusal, surface rights, unjust enrichment, and taxation.

Native Title Research in Australian Anthropology

Anthropology's involvement with Australian Indigenous people seeking to obtain legal rights, particularly in the context of the Native Title Act, has been subject to considerable critique both within and outside of the academy. The collected papers in this volume provide a constructive case for best approaches in this applied anthropological research, given the apparent constraints of the legal environment and the necessity to retain professional anthropological integrity. Issues of cultural change and identification of the relevant traditional ‘law and custom’ continuing through time are among a range of matters at the intersection of Australian and Aboriginal customary law. This collection assembles papers that demonstrate the relevance and significance of applied research in this area.

How Jean-Guy Belley Thinks: A Translator's Note

Why has Quebec proved such a fertile ground for the study of legal pluralism over the last generation? It is not that formalism in law is any less tenacious in Quebec than elsewhere, or that the state-made law is held in lower esteem. If anything, the fabled cult of enactment that characterizes modern civilian methodology has been exacerbated in the run-up to the adoption of the Civil Code of Québec and the twenty years since that moment. The mixed nature of Quebec legal sources, given that mixité is seen as much as a historical fact as the basis for a way of knowing law, cannot explain the wealth of scholarly attention devoted to diversity in law. Whether Quebec's brand of pluralism for law comes from factors such as linguistic and cultural diversity, an ongoing contact with Aboriginal law, or a special experience with religious law is a matter of ongoing speculation. But in the final analysis, it is not unfair to think that legal pluralism has flourished in Quebec because of the work of a handful of imaginative scholars who have invested their talent in this intellectual project.Professor Jean-Guy Belley is plainly one of their number. His work as a theorist of legal pluralism is celebrated in Quebec and well read in France. Yet his prodigious scholarly output is less well known elsewhere in Canada, where that work would likely be understood to have special relevance. Indeed, over the past ten or so years, Professor Belley has placed increasing emphasis on Anglo-American legal scholarship and common-law sources in his teaching and thinking about law. The translation of the foregoing essay has therefore been prepared at once as a respectful homage to a friend and colleague and in the hope that, in a modest way, it might encourage a wider readership for his important work.

THE HARD CASE OF DEFINING “THE MÉTIS PEOPLE” AND THEIR RIGHTS: A COMMENT ON R. V. POWLEY

Section 35(2) of the Constitution Act, 1982 refers to “the Métis people” as one of the Aboriginal peoples of Canada whose existing Aboriginal and treaty rights are guaranteed by section 35(1).1 The subsequent First Ministers Conference on Aboriginal Constitutional Reform in the 1980s and the Charlottetown Accord in 1992 proved inadequate to the task of addressing the substantive content of these constitutional provisions. The unenviable task of defining a people and their rights has now fallen to the courts. The challenge facing them is the hard case of Canadian Aboriginal law.

Prevention Educational Program of Human Rabies Transmitted by Bats in Rain Forest Preserved Area of Southern Brazilian Coast

Guaraqueçaba city is a rain forest environmental protected area located on the southern coast of Brazil. Recently, the local Animal Health Service has noticed haematophagous bats feeding from humans and domestic animals, as well as bat colonies located in houses and public schools. In 2007, two non-haematophagous bats were tested positive by direct immunofluorescence for rabies in a nearby city. Native fauna and environmental laws protect non-haematophagous bats in Brazilian preserved areas such as Guaraqueçaba, making non-haematophagous bat population control almost impossible. Accordingly, the aim of this study was to evaluate a simple and feasible educational protocol applied by a multi-institutional task force in local elementary schools to prevent rabies transmitted by bats. Information was transmitted to children by video, lectures and oral question-answer section; evaluation was made by written questionnaires to teachers and students. Interinstitutional task force included public and animal health public services, a federal university and the city secretary of environment, of education, of agriculture and of animal health, and also participation of local community. Information was effectively absorbed by children when evaluated just after being given. As important, questionnaires showed that handling and playing with bats at day time was common in several elementary school students, exposing themselves to what may represent higher risk of rabies transmission than haematophagous bat feeding directly from humans. Training of teachers and students may effectively prevent rabies by bats in such communities. Insertion of this subject into science content of local elementary school educational programme was proposed in order to establish a continuing education programme on rabies transmitted by bats in environmental preserved areas.

Maturing Australia through Australian Aboriginal Narrative Law

This essay is a nonlinear narrative that attempts to “unthink” the ways in which Australian Indigenous peoples' identity, sovereignty, and law are discussed. An Australian Aboriginal law narrative and poetry are part of the unthinking language used to discuss these definitions. The essay challenges some of the Australian definitions of Indigenous identity, sovereignty, and law, which come out of a Western epistemology and value system. This challenge includes the role of the United Nations' special rapporteur on the situation of human rights and fundamental freedoms of Indigenous peoples and its lack of female representation. The essay goes on to critique Australia's lack of maturity in accepting its geographical location in the Southern Hemisphere. The overall critique, however, is balanced with a suggested alternative governance system based on the classic thinking of Australian Aboriginal senior law persons.

Recent Judicial Developments of Interest to Energy Lawyers

This article provides an overview of recent judicial developments of interest to energy lawyers. The authors summarize and provide commentary on recent Canadian case law in the areas of: Aboriginal law, conflict of laws, contracts, environmental law, securities law, taxation, joint operators, bankruptcy law, freehold leases, administrative law, and rights of first refusal.

Genocide: the distance between law and life

When we left Port Augusta, when they took us away, we could only talk Aboriginal. We only knew one language and when we went down there, well we had to communicate somehow. Anyway, when I come back I couldn't even speak my own language. And that really buggered my identity up. It took me 40 odd years before I became a man in my own people's eyes, through Aboriginal law. Whereas I should've went through that when I was about 12 years of age}

Aboriginal(ising) International Law and Other Centres of Power

The recognition of Indigenous peoples has been a subject of vigorous debate in international law and relations for more than five centuries, and in contemporary times it remains an unresolved dilemma. The irresolution remains even though the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) sets out minimum standards for Indigenous rights and much work has been done by UN bodies and human rights experts. In spite of these developments, the reality embodies ongoing violations of Indigenous peoples’ rights across the globe. This article reviews the contemporary relations between Indigenous and non-Indigenous peoples and explores how those relations continue to be shaped by the dynamics of power – dynamics that centre western knowledges and understandings. This article also examines the resulting power imbalances and how those imbalances might be redressed through an approach that centres Aboriginal knowledges, understandings and perspectives on the nature of Aboriginality and the right to be Aboriginal. The ultimate goal is to assess how the centring of Aboriginal perspectives would assist the process of building more equitable relationships based upon principles of coexistence, and how such a process would go beyond the translation of Aboriginal rights done by Western interpreters. Essential to it is the capacity for peoples to determine and define their sense of self and Aboriginality. This article reviews developments in international law and approaches to the perceptions of Aboriginality and associated rights.

Growing Together? Land Rights and the Northern Territory Intervention

According to the Oxford English Dictionary, the term coalition comes from the Latin coalescere or ‘coalesce’, meaning “come or bring together to form one mass or whole”. Coalesce refers to the unity affirmed as something grows: co – “together”, alesce – “to grow up”. While coalition is commonly associated with formalised alliances and political strategy in the name of self-interest and common goals, this paper will draw as well on the broader etymological understanding of coalition as “growing together” in order to discuss the Australian government’s recent changes to land rights legislation, the 2007 Emergency Intervention into the Northern Territory, and its decision to use Indigenous land in the Northern Territory as a dumping ground for nuclear waste.

Incommensurability and survivance: Native North American literature and federal law

This essay analyses the frequent portrayal of courtroom scenes by Native American writers in which Native American rhetoric is employed subversively by fictional defendants and witnesses. I argue that these portrayals challenge the assumptions and power of federal legal rhetoric, with an insistence upon the cultural difference between European American and Native American belief systems. By employing Homi Bhabha’s concept of incommensurability in dialogue with Gerald Vizenor’s concept of Native American survivance, the essay proposes that the employment of Native American rhetoric is a performance of cultural difference that challenges dominant American ideology in an act of survivance.

Colonial Sovereignties and the Self-Colonizing Conundrum

Relational epistemologies and ontologies of indigenous populations call into question the legitimacy of colonial sovereign foundations. Referring to Derrida's sketch of the impossible, Watson writes: “My suggestion is that the moment of ‘impossibility’ in recognizing the sovereignty of Aboriginal laws, is the moment which provides Australians with the opportunity to ‘take responsibility’ in order to have a future” (2006, p. 26). Nevertheless the colonial law that presumes settled foundations continues to deny any need to address its own legitimacy. Derrida (2005) argues that progressive reason consigns to forgetting its historical and subjective origins, likening this to a spider spinning a cocoon of autoimmunity to preserve its right to reason determinately rather than boldly traversing its web. Is it possible for reason to speculate reasonably with itself? (p. 127–140).

Environmental Law and Native American Law

This review seeks to engage two bodies of scholarship that have typically been analyzed as discrete areas of enquiry—environmental law and American Indian law. In the twenty-first century, native peoples' involvement in environmental politics is becoming more assertive. In this context it is necessary to think about the impact indigenous involvement may have in shaping future U.S. environmental agendas and regulations. After briefly discussing the rise of environmental movements and environmental law in the United States, I turn to the historical treatment of native peoples and in particular the treatment of their natural resources. This historical backdrop is essential to understanding tribal status today under the Environmental Protection Agency, and the challenges some tribal governments now present to environmental exploitation and degradation by states and corporations. The review concludes by reflecting on the future of U.S. environmental law in the context of increasing pressure being exerted by international environmental law and global indigenous politics.

Federal Constitutionalism and Aboriginal Difference

The author outlines a new legal approach, which he labels federal constitutionalism, to the question of aboriginal difference in Canada. This approach has the potential to open up more fruitful avenues for the resolution of aboriginal law issues than either the “frozen rights” approach currently adopted by the Supreme Court of Canada or the treaty federalism approach, which posits that treaties should be used to resolve all differences between aboriginals and non-aboriginals. The author outlines the difficulties inherent in both the frozen rights and treaty federalism approaches. Federal constitutionalism, in contrast, draws its vitality from an organic understanding of Canada’s constitutional experience. It would allow aboriginal peoples to be seen as federal actors who have historically shaped the Canadian federation.Federal constitutionalism is a multi-faceted approach that would permit aboriginal questions to be addressed using the federal principle, thereby allowing the legal focus to move away from section 35 of the Constitution Act, 1982. Aboriginal peoples would be able to exercise the rights of sovereignty over their own internal affairs, while individual aboriginals could participate directly in federal and provincial governments without having to proceed through the intermediary of aboriginal representatives. Federal constitutionalism would allow aboriginal peoples a guaranteed sphere of autonomy, while permitting recognition of their historical interdependence with non-aboriginal peoples.