Settled and Unsettled Spaces: Are We Free to Roam?
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Property Outlaws Eduardo M
Cornell Law Library Scholarship@Cornell Law: A Digital Repository Cornell Law Faculty Publications Faculty Scholarship 5-1-2007 Property Outlaws Eduardo M. Peñalver Cornell Law School, [email protected] Sonia K. Katyal Fordham Law School Follow this and additional works at: http://scholarship.law.cornell.edu/facpub Part of the Criminal Law Commons, and the Property Law and Real Estate Commons Recommended Citation Peñalver, Eduardo M. and Katyal, Sonia K., "Property Outlaws" (2007). Cornell Law Faculty Publications. Paper 28. http://scholarship.law.cornell.edu/facpub/28 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Faculty Publications by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. PROPERTY OUTLAWS EDUARDO MOISitS PE&ALVERt & SONiA K. KATYAL" Most people do not hold those who intentionallyflout property laws in par- ticularly high regard. The overridingly negative view of the property lawbreaker as a "wrongdoer" comports with the status of property rights within our charac- teristically individualist, capitalist, political culture. This reflexively dim view of property lawbreakers is also shared, to a large degree, by property theorists, many of whom regard property rights as a relatively fixed constellation of enti- tlements that collectively produce stability and efficiency through an orderly sys- tem of ownership. In this Article, Professors Peihalverand Katyal seek partially to rehabilitate the reviled characterof the intentional property lawbreaker, and to show how property outlaws have played an important role in the evolution and transfer of property entitlements. -
Individual Aboriginal Rights
Michigan Journal of Race and Law Volume 9 2004 Individual Aboriginal Rights John W. Ragsdale Jr. University of Missouri-Kansas City School of Law Follow this and additional works at: https://repository.law.umich.edu/mjrl Part of the Cultural Heritage Law Commons, Indian and Aboriginal Law Commons, Legal History Commons, and the Property Law and Real Estate Commons Recommended Citation John W. Ragsdale Jr., Individual Aboriginal Rights, 9 MICH. J. RACE & L. 323 (2004). Available at: https://repository.law.umich.edu/mjrl/vol9/iss2/2 This Article is brought to you for free and open access by the Journals at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of Race and Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. INDIVIDUAL ABORIGINAL RIGHTS John W RagsdaleJr.* INTRODUCTION ....................................................................... 323 I. THE DEVELOPING CONCEPT OF INDIVIDUAL ABORIGINAL R IGHTS ............................................................. 331 A. The Western Shoshone Experience Prior to the Indian Claims Commission Act ............................................ 331 B. The Indian Claims Commission Proceedings .................... 336 C. The Dann Litigation and the Establishment of Individual A boriginal R ights .................................................... 341 II. CONTOURS OF THE DOCTRINE ............................................... -
Aboriginal Title and Private Property John Borrows
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference Volume 71 (2015) Article 5 Aboriginal Title and Private Property John Borrows Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/sclr This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Citation Information Borrows, John. "Aboriginal Title and Private Property." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 71. (2015). http://digitalcommons.osgoode.yorku.ca/sclr/vol71/iss1/5 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in The uS preme Court Law Review: Osgoode’s Annual Constitutional Cases Conference by an authorized editor of Osgoode Digital Commons. Aboriginal Title and Private Property John Borrows* Q: What did Indigenous Peoples call this land before Europeans arrived? A: “OURS.”1 I. INTRODUCTION In the ground-breaking case of Tsilhqot’in Nation v. British Columbia2 the Supreme Court of Canada recognized and affirmed Aboriginal title under section 35(1) of the Constitution Act, 1982.3 It held that the Tsilhqot’in Nation possess constitutionally protected rights to certain lands in central British Columbia.4 In drawing this conclusion the Tsilhqot’in secured a declaration of “ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land”.5 These are wide-ranging rights. -
Some Thoughts on Aboriginal Title
SOME THOUGHTS ON ABORIGINAL TITLE Brian Slattery* Introduction Justice Ivan Cleveland Rand, for whom this lecture is named, served as a judge in the Supreme Court of Canada for some sixteen years, between 1943 and 1959. During that period, the Supreme Court of Canada handed down only three reported decisions relating to the rights of aboriginal peoples.1 In two of these cases, Justice Rand delivered separate opinions.2 Some passages that appear there are worth pondering. In the St. Ann’s Island Shooting and Fishing Club case,3 decided in 1950, Justice Rand stated with respect to a provision of the Indian Act:4 The language of the statute embodies the accepted view that these aborigines are, in effect, wards of the state, whose care and welfare are a political trust of the highest obligation. For that reason, every such dealing with their privileges must bear the imprint of Governmental approval... Six years later, in the case of Francis v. The Queen,5 Justice Rand remarked with respect to a clause favouring Indians in the Jay Treaty of 1794: Appreciating fully the obligation of good faith toward these wards of the state [i.e. the Indians], there can be no doubt that the conditions constituting the raison d ’etre of the clause were and have been considered such as would in foreseeable time disappear.... Whether, then, the time of its expiration has been reached or not it is not here necessary to decide; it is sufficient to say that there is no legislation now in force implementing the stipulation. -
Climate Change... Health) and the Community
THE JOURNAL OF THE SCHOOL OF FORESTRY & ENVIRONMENTAL STUDIES SPRING 2006 environment YALE Conservationists Thinking Big to Save the Last Great Places INSIDE: Gift for Land Conservation page 11 Spurring Action on Climate Change page 15 Developing World Gaining Access to Online Research page 19 letters To the Editor: Editor’s Note: Below are excerpts from national spokesman for taking meaningful, I read your article about forests as a a letter sent to Yale University President national action on climate change. remedy for global warming [“As a Remedy Richard Levin on February 7 and We believe that the president of Yale can to Global Warming, Do Forests Matter?,” President Levin’s response. get some attention, particularly if you turn Fall 2005] and was perplexed, because your own commitment to rallying the nowhere in the article was the fact that the Dear President Levin, commitments of the presidents of other carbon taken up by a tree part remains out We were struck by a juxtaposition of major U.S. universities to join you in calling of circulation as long as that tree part is two articles in the January 29 for meaningful action on climate change not degraded to its con- Washington Post, one a headline that reflects our most current scientific stituent molecules or article entitled “Debate on knowledge. elements. This should Climate Shifts to Issue of V. A LARIC SAMPLE be a major tenet of the Irreparable Change,” and the PRESIDENT tree-based sequestration other on how the State of the PINCHOT INSTITUTE WASHINGTON, D.C. argument, and it should Union address has become M.F. -
Aboriginal Title As a Constitutionally Protected Property Right Kent Mcneil Osgoode Hall Law School of York University, [email protected]
Osgoode Hall Law School of York University Osgoode Digital Commons Articles & Book Chapters Faculty Scholarship 2000 Aboriginal Title as a Constitutionally Protected Property Right Kent McNeil Osgoode Hall Law School of York University, [email protected] Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/scholarly_works Recommended Citation McNeil, Kent. "Aboriginal Title as a Constitutionally Protected Property Right." Lippert, Owen, ed. Beyond the Nass Valley: National Implications of the Supreme Court's Delgamuukw Decision. Vancouver, BC: The rF aser Institute, 2000. p. 55-75. ISBN: 0889752060 This Book Chapter is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons. Aboriginal Title as a Constitutionally Protected Property Right KENT MCNEIL Delgamuukw v. British Columbia' is undoubtedly one of the most impor tant decisions the Supreme Court of Canada has ever handed down. It will have a continuing, long-term impact on the Aboriginal peoples' re lationships with the federal and provincial governments, as well as on the constitutional division of powers in this country.2 While there are many aspects of the decision that require analysis and discussion, this paper's focus is on the definition of Aboriginal title provided by the Court. In particular, I am going to discuss the status of Aboriginal title, ~~<::~~~ a pr?Ee ~ty_ rig~~1 J2.u~ - ~1E.?. ~ ~:__ a_~!E.£~~!!!.i9 n_ally}.ro f£.~t~I£I£Eitj right. This wi1f'involve looking at the central position of property, espe- Cially real property, in the common law. -
Indicators for Relational Values of Nature's Contributions to Good
Ecosystems and People ISSN: (Print) 2639-5916 (Online) Journal homepage: https://www.tandfonline.com/loi/tbsm22 Indicators for relational values of nature’s contributions to good quality of life: the IPBES approach for Europe and Central Asia Matthias Schröter, Esra Başak, Michael Christie, Andrew Church, Hans Keune, Elena Osipova, Elisa Oteros-Rozas, Stefanie Sievers-Glotzbach, Alexander P. E. van Oudenhoven, Patricia Balvanera, David González, Sander Jacobs, Zsolt Molnár, Unai Pascual & Berta Martín-López To cite this article: Matthias Schröter, Esra Başak, Michael Christie, Andrew Church, Hans Keune, Elena Osipova, Elisa Oteros-Rozas, Stefanie Sievers-Glotzbach, Alexander P. E. van Oudenhoven, Patricia Balvanera, David González, Sander Jacobs, Zsolt Molnár, Unai Pascual & Berta Martín-López (2020) Indicators for relational values of nature’s contributions to good quality of life: the IPBES approach for Europe and Central Asia, Ecosystems and People, 16:1, 50-69, DOI: 10.1080/26395916.2019.1703039 To link to this article: https://doi.org/10.1080/26395916.2019.1703039 © 2020 The Author(s). Published by Informa Published online: 10 Jan 2020. UK Limited, trading as Taylor & Francis Group. Submit your article to this journal Article views: 628 View related articles View Crossmark data Full Terms & Conditions of access and use can be found at https://www.tandfonline.com/action/journalInformation?journalCode=tbsm22 ECOSYSTEMS AND PEOPLE 2020, VOL. 16, NO. 1, 50–69 https://doi.org/10.1080/26395916.2019.1703039 REVIEW: THE SCIENCE-POLICY INTERFACE OF ECOSYSTEMS AND PEOPLE Indicators for relational values of nature’s contributions to good quality of life: the IPBES approach for Europe and Central Asia Matthias Schröter a,EsraBaşakb, Michael Christie c, Andrew Church d,HansKeunee,f, Elena Osipovag, Elisa Oteros-Rozash,i, Stefanie Sievers-Glotzbachj, Alexander P. -
The Law of Native American Hunting, Fishing and Gathering Outside of Reservation Boundaries in the United States and Canada
Canada-United States Law Journal Volume 39 Issue Article 5 January 2014 The Law of Native American Hunting, Fishing and Gathering Outside of Reservation Boundaries in the United States and Canada Guy Charlton Follow this and additional works at: https://scholarlycommons.law.case.edu/cuslj Part of the Transnational Law Commons Recommended Citation Guy Charlton, The Law of Native American Hunting, Fishing and Gathering Outside of Reservation Boundaries in the United States and Canada, 39 Can.-U.S. L.J. 69 (2015) Available at: https://scholarlycommons.law.case.edu/cuslj/vol39/iss/5 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Canada-United States Law Journal by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. THE LAW OF NATIVE AMERICAN HUNTING, FISHING AND GATHERING RIGHTS OUTSIDE OF RESERVATION BOUNDARIES IN THE UNITED STATES AND CANADA Guy Charlton* ABSTRACT: This article examines and compares the law of Native American/Aboriginal hunting, fishing and gathering rights in those areas which are located outside of reserved land area in Canada and the United States. The article argues that despite the differing statutory and constitutional traditions, both states’ law and policy towards the Native American continues to reflect the underlying premises of the colonial project. While indigenous peoples have significant use rights, national, state and provincial power remains the primary locus of regulatory authority. However, there may be opportunities to extend use and co-management rights to allow tribes to be involved in land use and environmental regulatory decisions. -
Aboriginal Title Reconsidered Nell Jessup Newton Notre Dame Law School, [email protected]
Notre Dame Law School NDLScholarship Journal Articles Publications 1980 At the Whim of the Sovereign: Aboriginal Title Reconsidered Nell Jessup Newton Notre Dame Law School, [email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Indian and Aboriginal Law Commons Recommended Citation Nell J. Newton, At the Whim of the Sovereign: Aboriginal Title Reconsidered, 31 HASTINGS L.J. 1215 (1980). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/1199 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. At the Whim of the Sovereign: Aboriginal Title Reconsidered By NELL JESSUP NEWTON* In 1947, Professor Felix Cohen, then Associate Solicitor for the United States Department of the Interior and a recognized scholar in American Indian law, wrote that despite what "[e]very American schoolboy is taught . the historic fact is that practically all of the real estate acquired by the United States since 1776 was purchased not from Napoleon or any other emperor or czar but from its original In- dian owners."' Only eight years later, Justice Reed, writing for the ma- jority of the United States Supreme Court in Tee-Hit-Ton Indians v. United States,2 asserted a ontrary view: "Every American schoolboy knows that the savage tribes of this continent were deprived of their ancestral ranges by force and that, even when the Indians ceded mil- lions of acres by treaty. -
The Metamorphosis of Aboriginal Title
THE METAMORPHOSIS OF ABORIGINAL TITLE Brian Slattery* Aboriginal title has undergone a significant transformation from the colonial era to the present day. In colonial times, aboriginal title was governed by Principles of Recognition based on ancient relations between the Crown and Indigenous American peoples. With the passage of time, this historical right has evolved into a generative right, governed by Principles of Reconciliation. As a generative right, aboriginal title exists in a dynamic but latent form, which is capable of partial articulation by the courts but whose full implementation requires agreement between the Indigenous party and the Crown. The courts have the power to recognize the core elements of a generative right — sufficient to provide the foundation for negotiations and to ensure that the Indigenous party enjoys a significant portion of its rights pending final agreement. However, the courts are not in a position to give a detailed and exhaustive account of a generative right in all its facets. This result can be achieved only by negotiations between the parties. Le titre autochtone a considérablement évolué depuis l’époque coloniale. À cette époque, le titre autochtone était régi par les principes de reconnaissance de la common law sur la base des anciennes relations entre la Couronne et les peuples autochtones américains. Au fil des ans, ce droit historique est devenu un droit héréditaire régi par les principes de réconciliation. En tant que droit héréditaire, le titre autochtone existe sous une forme dynamique mais latente, que les tribunaux peuvent formuler partiellement, mais dont la définition valide doit faire l’objet d’une entente entre la partie autochtone et la Couronne. -
The Post-Delgamuukw Nature and Content of Aboriginal Title
THE POST-DELGAMUUKW NATURE AND CONTENT OF ABORIGINAL TITLE Kent McNeil Osgoode Hall Law School Toronto May, 2000 TABLE OF CONTENTS Introduction 1 1. The Source of Aboriginal Title 3 2. The Proprietary Status of Aboriginal Title 10 3. The Content of Aboriginal Title 14 4. The Inherent Limit on Aboriginal Title 21 5. The Communal Nature of Aboriginal Title 30 6. The Inalienability of Aboriginal Title 38 Conclusions 48 1 Introduction In Delgamuukw v. British Columbia,1 the Supreme Court of Canada finally addressed the issue of the nature and content of Aboriginal title head on, after dancing around the matter for many years.2 While not deciding whether the Gitksan (also spelled Gitxsan) and Wet'suwet'en Nations who brought the case to court actually have title to the lands they claim,3 the Court did provide a definition of Aboriginal title to guide trial courts and negotiators as they grapple with the issue.4 This definition contains a number of elements: 1. the source of Aboriginal title; 2. the proprietary status of Aboriginal title; 3. the content of Aboriginal title; 4. the inherent limit on Aboriginal title; 1 [1997] 3 S.C.R. 1010. 2 The Court did address this issue to some extent in earlier decisions, notably Calder v. Attorney- General of British Columbia, [1973] S.C.R. 313 (hereinafter Calder), and Guerin v. The Queen, [1984] 2 S.C.R. 335 (hereinafter Guerin). See also St. Catherine's Milling and Lumber Company v. The Queen (1888), 14 App. Cas. 46 (P.C.) (hereinafter St. Catherine's); Canadian Pacific Ltd. -
Lomfeld 2017 Property
Bertram Lomfeld A Political Grammar of Property Law Preliminary Draft 02/2017 DELIBERATING PROPERTY: A POLITICAL GRAMMAR OF PROPERTY LAW Bertram Lomfeld 1 Political Properties: What? Who? Why? 2 Justificatory Reasons for Property 3 A Bundle of Property Rights 4 A Bundle of Property Duties 5 Property As Deliberation 6 Applying the Grammar: Some Tentative Case Studies Some people understand property as a natural human right. Meant to depoliticize property it is perhaps one of the most political arguments one could take. This paper is starting from an opposite perspective, i.e. fundamental value pluralism. Starting from value pluralism, it is impossible to define a ‘universal’ core of property either on a conceptual or a normative (justificatory) level. To understand property as a clear ‘human right’ might still allow for a conceptual ‘structural’ pluralism, 1 but it accepts only private autonomy and subjective freedom as justificatory basis. For an economic perspective, the core function of property rights is the internalization of social cost.2 So, it all depends on the perspective: ‘How one defines the core of property depends on what values one thinks property serves‘.3 This paper attempts to sketch a more freestanding genuinely pluralistic property theory relying on a ‘deliberative’ discourse theory.4 The strategy of a ‘deliberative legal theory’ is pragmatic and idealistic at the same time.5 Considering law as a constitutive structure of social cooperation, it analyzes social practices of law and theory discourses (scholarship, legislation and judicial cases). It deconstructs or ‘liquefies’ monistic normative principles or policies and tries to reconstruct them as an integrative yet plural ‘political grammar’ for legal argumentation.