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Indigenous Peoples Law and Policy Program (IPLP) Dissertations
ABOUT THE COLLECTION
This collection includes dissertations from Doctor of Juridical Science (S.J.D.) graduates of the University of Arizona Law’s Indigenous Peoples Law and Policy (IPLP) Program. The collection is intended to promote research and advocacy to protect and promote indigenous peoples’ human rights.
Learn more about IPLP at https://law.arizona.edu/indigenous-peoples-law-policy.
Questions?
Please contact Justin Boro, UA College of Law, at justinboro1986@email.arizona.edu with questions about the dissertation collection and the IPLP Program.
Recent Submissions
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THEORETICAL RECOGNITION OF INDIGENOUS SELF -DETERMINATION AGAINST PRACTICAL IMPLEMENTATION: A CASE OF THE BATWA IN UGANDAThis dissertation critically analyzes the recognition and protection of human rights of Indigenous Peoples through a case study of the Batwa in Uganda. The Batwa were chosen as the center of the study because they are among the most marginalized in the world. They were forcefully evicted from their ancestral land in 1991 for creation of conservation areas as Bwindi and Mgahinga National parks leaving them landless and exposed to untold marginalization and suffering. The study discusses international, regional, and domestic legal and policy frameworks that recognize rights of Indigenous Peoples, their limitations, and the extent to which they are enforced. The dissertation addresses the complexity in defining Indigenous Peoples in Africa and highlights the history of the Batwa, forced evictions and the impacts on the Batwa of their resulting landlessness. It examines whether this history qualifies the Batwa as Indigenous Peoples. The dissertation argues that defining and identifying Indigenous Peoples is not only problematic in Africa but has been politicked. Many Africans argue that all Africans are Indigenous and there is an overlap between “Indigenous Peoples” and “Minority Groups.” The study found that vibrant international and regional laws protecting rights of Indigenous Peoples exist, but many are unimplemented. There is low political will in Uganda to recognize these rights coupled with limited awareness. The study concludes that to change the current narrative, there is need for legal recognition and definition of Indigenous Peoples in Africa, domestication of international laws, institution of compliance measures, massive sensitization, and robust political will
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FROM DISPOSSESSION TO DISENROLLMENT: EXCLUSIONARY MECHANISMS IN THE TRIBAL WORLDThis study produces insights, ideas, and findings about exclusionary mechanisms associated with Federal Indian law, International Human Rights law, and selected Tribal practices. The study examines the consequences of these exclusionary devices on living tribal communities as well as suggesting the potential for healing the effects of exclusion found in the United Nations Declaration on the Rights of Indigenous Peoples. It looks at the history of Federal Indian law, International Human Rights law, and tribal practices to compare exclusionary practices with the collective orientation of traditional tribal ways of knowing and being. The author also describes a split between guilt and self-image in the national psyche that must be healed before dispossession and exclusion can balanced with practices more concerned with human welfare.
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Strengthening Tribal Control Over Tribal Lands Through the Helping Expedite and Advance Responsible Tribal Homeownership (HEARTH) Act: A Guidebook for Implementing Tribal Leasing Codes Under the HEARTH Act RequirementsIntroduction: In July 2012, President Obama signed into law the Helping Expedite and Advance Responsible Tribal Homeownership Act 1 (hereinafter "HEARTH Act"). The HEARTH Act amends the Indian Long-Term Leasing Act of 19552 (hereinafter "Long-Term Leasing Act") by allowing tribes to approve leases for enumerated purposes without prior approval of the Secretary of the Interior (hereinafter "Secretary"), assuming ''the lease is executed under the tribal regulations approved by the Secretary." The passage of the HEARTH Act provides tribal governments with a valuable tool, as it allows tribal nations to more quickly and easily lease their lands which, in tum, allows for greater tribal control to promote community development and encourage economic growth in Indian Country. This Guidebook is designed to assist tribal nations who wish to implement the authority restored to them by the HEARTH Act. To understand the full scope and impact of the HEARTH Act, it is necessary to understand the background and history leading up to the passage of the HEARTH Act. Accordingly, this Guidebook first explores both the general history of leasing tribal lands and the specific history of the HEAR TH Act itself. The Guidebook then examines each section of the HERA TH Act, before turning to a discussion of the implementation process. The core of this Guidebook is found in its appendices, which provide model codes, regulations, and other templates for documents tribes will need to develop as part of implementing the HEARTH Act.
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Indigenous People, Human Rights, and the African Problem: The Case of the Twa, Ogiek and MaasaiThis article examines indigenous peoples' human rights and the African problem through the lens of the Twa, Ogiek and Maasai of Eastern Africa. The article argues that the whole issue of indigenous peoples' rights, which has received so much attention over the last three decades, has been insufficiently problematized in Africa. After setting the stage, the article looks at how some of the problems of applying indigenous peoples' rights in Africa have been handled. In the framework of case studies, it focuses on some absolutely horrible decisions made in Africa regarding peoples that could arguably be covered by recent developments in international law involving indigenous peoples and analyzes why these developing international human rights principle standards and declarations for indigenous people have not been applied by the courts in Africa. It concludes that in order to reverse the above trend, something needs to be done: we need to educate the judges, law students, legislators, and other stakeholders about indigenous peoples rights so as to get the institutions of African governments to realize how important it is.
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Ecosystem Co-Management Agreements: A Study of Nation Building or a Lesson on Erosion of Tribal Sovereignty?This article examines tribal sovereignty and resource management in the era of environmental self-determination through the lens of the Cornell/Kalt model of "nation building" in Indian Country. The nation building model holds that tribes can achieve self-determination by acting, thinking, being, and relating as independent, self-governing nations, regardless of whether they are recognized as such by outsiders. After setting the stage, the article looks at ecosystem management and species co-management agreements that have been initiated between tribes and federal and state agencies. In the framework of case studies, it focuses on the elements of de facto sovereignty and analyzes the success of various tribes' approaches to ecosystem comanagement It concludes that co-management agreements can offer significant benefits to Indian nations, but they can pose extraordinary challenges to tribes and are not without risks. However, if crafted correctly, these agreements can also motivate tribes to build nations.
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A Libertarian Framework for Indian RightsThis dissertation outlines a new vision for Indian rights, drawing from the fields of libertarian political philosophy and critical race legal theory. The goal is to develop a framework for federal Indian policy that provides for a true realization of tribal self-determination, that maximizes the liberty interests of American Indians, and that promotes lasting economic development in Indian Country.
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The Kids Aren't Alright: An Argument to Use the Nation Building Model in the Development of Native Juvenile Justice Systems to Combat the Effects of Failed Assimilative PoliciesChildren are the future of any society. And, in many cases, their first interaction with their own government is through a juvenile justice system. Thus, these systems are not only important for their role in curtailing crime and reforming juvenile delinquents, but also for their ability to shape values and norms within a community. Unfortunately, for many Native American reservations, this means that juvenile justices systems are little more than assimilative tools used by states or the U.S. Federal Government to promote principles and values that do not align with those of the Native communities that they "serve." The question is: Does this have to be the case? Is there a way for Native American reservations to take control of their own juvenile justice systems and shape them to fit their own needs? The answer is a resounding "yes," and some Native American reservations have begun to do just that. Specifically, this article examines the current legal framework of juvenile justice on Native American reservations. This analysis begins with a historical look at how Native children have long been the intended victims of assimilative policies and, in a very real sense, how juvenile justice on many reservations continues to be an assimilative process. This, however, does not have to be the case. There is jurisdictional space within which Native Americans can take control of juvenile justice on their lands. Furthermore, there is an ever-increasing body of evidence demonstrating that as Native American nations exercise more control over their day-today lives, their overall quality of life-whether measured in terms of economics, health measurements, or other social factors-improves as well. The analysis closes with several case studies demonstrating the variety of methods that Native nations are currently employing to take back control over their own youth, and thus, over their community's own future.
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International Human Rights Law in the Context of Indigenous Peoples: Moving From Legislation to ImplementationSummary: In Brazil, the right of indigenous peoples to lands has been recognized since colonial time. But recognition of rights on paper has not been followed by implementation and enforcement of those rights. Indigenous peoples are still threatened. The object of present study is the position of Brazilian Federal Supreme Court in regard to regarding indigenous peoples' right to lands and the 144 pending cases. Despite existing constitutional and international laws protecting indigenous peoples' lands, the security of those fundamental rights is still pending confirmation in Brazil. Today, the most relevant suits regarding indigenous peoples' lands usually go to the Federal Supreme Court level because of the conflicting interests between the Union and the federation units (states) and federalism issues. Land rights' cases are not treated as an issue of fundamental rights and or as a matter concerning the State's international human rights obligations. Conflicts over indigenous lands have been framed more as disputes involving the social structure, economic and political interests than an issue of human rights. Therefore, the Brazilian Federal Supreme Court shall confirm its position regarding the interpretation of constitutional article 231 in line with human rights standards and Brazil's international obligations by delivering its final decisions on the pending cases. Generally, there is much resistance to the use of foreign or international instruments as law, even after they become part of the domestic legal order such as the ILO Convention no. 169 in Brazil. That is because allied to the positivist tradition, the Brazilian Federal Constitution is considered to be the highest legal instrument and to comprehensively address fundamental rights. Also, there is a strong belief that the use of international human rights law can threaten State sovereignty and that human rights issues are limited to policy. The Supreme Court has dismissed the use of international human rights law for indigenous land rights cases based on inconsistent arguments, sometimes full of misunderstandings. International human rights standards and instruments are in much more harmony with the Brazilian Federal Constitution than it is stated and can be legitimate tools to overcome colonialism and truly protect indigenous peoples and their culhires through the security of their rights to lands and self-determination. The reservations expressed by the Judiciary regarding the application of human rights standards to indigenous peoples land rights' cases are unfounded, but kept as a scapegoat to serve only the special interests of the elite. This study addresses the following questions: Why should/could the IHRL be used to enforce indigenous peoples' constitutional right to lands at the Brazilian Federal Supreme Court? The main topics of the responses found and developed in the dissertation are: a) international human rights law (IHRL) has evolved to protect indigenous peoples' lands as fundamental rights and have created obligations for the States towards indigenous peoples; b) indigenous land rights' issues are properly the concern of domestic and international institutions and States should be willing to resolve those cases as a matter of human rights; c) the Brazilian legal order allows the use of international human rights law to be directly applied and used as a tool of interpretation of the Constitution because these systems are in harmony; and d) indigenous land rights should be enforced as human rights.
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In the Aftermath of Rampage Shootings: Is Healing Possible? Hard Lessons from the Red Lake Band of Chippewa Indians and Other Indigenous PeoplesThis study produces insights, ideas and findings which link mass shootings and communal responses in the United States and on Indian reservations. The study compares and contrasts the aftermath of these tragedies in non-indigenous communities with the responses when the tragedies have occurred in certain American Indian communities. It looks to the roots of the Native American approach in international indigenous historical evidence. The author describes an institutional weakness in the Anglo-European judicial model in how it responds to the aftermath of heinous crimes. He explores adaptation of certain practices from indigenous peoples as a method of contributing to healing, closure and reconciliation following heinous criminal behavior. He further explores the possibility of incorporating face-to-face, interpersonal interaction between mass shooting victims, their families, and offenders and their families.
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A Human Rights Paradigm for Indigenous Intellectual PropertyThis dissertation investigates the use of established international human rights law in the protection of traditional knowledge. Traditional knowledge is not only deeply embedded in indigenous culture and beliefs, but it is essential to the fabric of indigenous society. However, because of inadequacies in existing Western intellectual property jurisprudence, the current framework of international intellectual property law is insufficient to provide indigenous communities with the safeguards necessary to protect the integrity of their traditional knowledge. Accordingly, a new approach to indigenous intellectual property rights is required, and in my dissertation, I demonstrate how the existing body of international human rights law provides an appropriate mechanism for the protection of traditional knowledge. Indeed, the past decade has seen an increased interest in the protection of indigenous rights and accordingly international institutions and judicial bodies have reinterpreted current human rights law and applied it to situations particular to indigenous peoples. As such, the InterAmerican Court of Human Rights has held that the right to property in international law also applies to indigenous peoples, both individually and collectively. Similarly, the Committee for the Elimination of All Forms of Discrimination has held that the lack of consideration for indigenous customary legal systems is discriminatory and against international law and established jurisprudence. Accordingly, the proposed legal framework for this protection is based on the right of selfdetermination and the principle of non-discrimination, as well as existing law specifically protecting indigenous knowledge. I further argue that the application of human rights law to the protection of traditional knowledge is consistent with the expansion in scope of human rights jurisprudence over the past decade.
