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Indigenous Peoples and the Law

Edited by: Denise Ferreira da Silva, Brenna Bhandar, Mark Harris

ISBN13: 9780415640213
Published: February 2019
Publisher: Routledge
Country of Publication: UK
Format: Hardback, 4 Volumes
Price: £925.00

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Despite the fact that the appropriation of land and resources of the so-called New World necessarily involved the dispossession and exploitation (and, sometimes, genocide) of the original inhabitants of colonized nations, it was not until the late twentieth century that Indigenous Peoples attained any meaningful degree of legal recognition in both national and international spheres. Until then Indigenous Peoples (also known as ‘First Nations’ and ‘First Peoples’) were routinely denied any form of juridical identity.

Research in and around Indigenous Peoples and the Law is now very wide-ranging and flourishes as never before. But much of the relevant literature remains inaccessible or is highly specialized and compartmentalized, so that it is difficult for many of those who are interested in the subject to obtain an informed, balanced, and comprehensive overview. This new four-volume collection meets the need for an authoritative anthology to make sense of the subject’s vast and dispersed literature and the continuing explosion in research output. Drawing on a wide variety of materials from a broad range of disciplines and theoretical approaches, the collection gathers canonical and cutting-edge major works in a ‘one-stop’ resource to enable users to understand how the law Indigenous Peoples encounter has been transformed from an oppressive, rights-denying system to a site of contestation and for the articulation of claims.

The collection includes a full index and is supplemented by introductions to each volume, newly written by the editors, which place the gathered materials in their historical and intellectual context. Indigenous Peoples and the Law is an essential reference work which will be valued as a vital resource by students, scholars, policy-makers, and practitioners.

Law and Society
Volume 1
R. J. Miller and J. Ruru, ‘An Indigenous Lens into Comparative Law: The Doctrine of Discovery in the United States and New Zealand’, Western Virginia Law Review, 111, 2008, 849-916.
R. A. Williams Jr., ‘Introduction’, in The American Indian in Western Legal Thought: The Discourses of Conquest (Oxford University Press, 1992), pp.
K. McNeil, ‘A Question of Title: Has the Common Law Been Misapplied to Dispossess the Aboriginals’, Monash University Law Review, 16, 1990, 91-110.
H. Reynolds, The Law of the Land (Ringwood, Victoria: Penguin Books Australia, 1987), pp.
7-29, 179-183.
Antony Anghie, ‘Francisco de Vitoria and the Colonial Origins of International Law’, Social Legal Studies, 5, 1996, 321 -336.
Peter Fitzpatrick, ‘Terminal Legality: Imperialism and the (de) Composition of Law’, in Diane Kirkby and Catharine Coleborne (eds), Law, History, Colonialism: The Reach of Empire (Manchester, UK: Manchester University Press, 2001), 9-25.
P. Wolfe, ‘Corpus Nullius: The Exception of Indians and Other Aliens in US Constitutional Discourse.
1’, Postcolonial Studies, 10, 2, 2007, 127-151.
J. Evans, ‘Where Lawlessness is Law: The Settler-colonial Frontier as a Legal Space of Violence’, Australian Feminist Law Journal, 30, 1, 2009, 3-22.
C. F. Black, ‘The Camp of the Talngai-Gawarima’, in The Land is the Source of the Law: A Dialogic Encounter with Indigenous Jurisprudence (Abingdon, UK: Routledge, 2010), 11-20.
J. Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto, Canada
University of Toronto Press, 2002), 3-28.
M. Jackson, ‘Justice and Political Power: Reasserting Maori Legal Processes’, in Kayleen M. Hazlehurst (ed.), Legal Pluralism and the Colonial Legacy: Indigenous experiences of justice in Canada, Australia, and New Zealand (Brookfield, VT: Avebury, 1995), pp.
J. W. Zion and R. Yazzie, ‘Indigenous Law in North America in the Wake of Conquest’, Boston College International and Comparative Law Review, 20, 1997, 55-84.
I. Watson, ‘Power of the Muldarbi, the Road to its Demise’, Australian Feminist Law Journal, 11, 1, 1998, 28-45.
Carwyn Jones, ‘The Scope and Significance of Māori Legal History’, Te Pouhere Korero 3, 2009, 45-62.
V. Napoleon, ‘Tsilhqot'in Law of Consent’, UBC Law Review, 48, 2015, 873-899.

Volume 2
J. G. A. Pocock, ‘Law, Sovereignty and History in a Divided Culture: The Case of New Zealand and the Treaty of Waitangi’, McGill, Law Journal, 43, 1997, 481-506.
V. Deloria Jr., ‘Reserving to Themselves: Treaties and the Powers of Indian Tribes’, Arizona Law Review, 38, 1996, 963-980.
R. C. Harris, Making Native Space: Colonialism, Resistance, and Reserves in British Columbia (University of British Columbia Press, 2011), 265-292.
E. N. Olund, ‘From Savage Space to Governable Space: The Extension of United States Judicial Sovereignty Over Indian Country in the Nineteenth Century’, Cultural Geographies, 9, 2, 2002, 129-157.
E. Garroutte, ‘The Racial Formation of American Indians: Negotiating Legitimate Identities within Tribal and Federal Law’, The American Indian Quarterly, 25, 2, 2001, 224-239.
J. McCorquodale, ‘The Legal Classification of Race in Australia’, Aboriginal History, 10, 1/2,1986, 7-24.
H. Mostert and P. Fitzpatrick, ‘Living in the Margins of History on the Edge of the Country-Legal Foundation and the Richtersveld Community's Title to Land (Part 1)’, Journal of South African Law, 309, 2004, 309-323.
A. Xanthaki, ‘Land Rights of Indigenous Peoples in South-East Asia’, Melbourne Journal of International Law, 4, 2003, 467-496.
H. Minde, ‘Sami Land Rights in Norway: A Test Case for Indigenous Peoples’, International Journal on Minority and Group Rights, 8, 2, 2001, 107-125.
J. Y. Henderson, ‘Unraveling the Riddle of Aboriginal Title’, American Indian Law Review, 5, 1, 1977, 75-137.
J. Sarkin and A. Cook, ‘Human Rights of the San (Bushmen) of Botswana-The Clash of the Rights of Indigenous Communities and their Access to Water with the Rights of the State to Environmental Conservation and mineral Resource Exploitation’, Journal of Transnational Law & Policy, 20, 2010, 1-40.
G. Simpson, ‘Mabo, International Law, Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence’, Melbourne University Law Review, 19, 1993, 195-211.
J. D. Morris and J. Ruru, ‘Giving Voice to Rivers: Legal Personality as a Vehicle for Recognising Indigenous Peoples' Relationships to Water’, Australian Indigenous Law Review, 14, 2, 2010, 49-62.

Volume 3
V. Deloria and C. M. Lytle, The Nations Within: The Past and Future of American Indian Sovereignty (New York: Pantheon Books, 1984), pp.
Taiaiake Alfred Sovereignty in Joanne Barker (ed.), Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-determination (University of Nebraska Press, 2005), pp.
A. Simpson, Mohawk Interruptus: Political Life Across the Borders of Settler States (Duke University Press, 2014), PP.
E. I. A. Daes, ‘Some Considerations on the Right of Indigenous Peoples to Self-Determination’, Transnational Law & Contemporary Problems, 3, 1993, 1-12.
M. B. Trask, ‘Historical and Contemporary Hawaiian Self-determination: A Native Hawaiian Perspective’, Arizona Journal of International & Comparative Law, 8, 1991, 77-96.
S. Wiessner, ‘Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous People’, Vanderbilt Journal of Transnational Law, 41, 2008, 1141-1176.
M. Becker, ‘Correa, Indigenous Movements, and the Writing of a New Constitution in Ecuador’, Latin American Perspectives, 38, 1, 2011, 47-62.
T. Alfred and J. Corntassel, ‘Being Indigenous: Resurgences against Contemporary Colonialism’, Government and Opposition, 40, 4, 2005, 597-614.
K. Bruyneel, The Third Space of Sovereignty: The Postcolonial Politics of US-Indigenous Relations (University of Minnesota Press, 217-230.
E. I. Daes, ‘Indigenous Peoples and Their Relationship to Land’, Second Progress Report on the Working Paper, UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, E/CN, 4, 2001, 9-19 (para 20-71).
R. L. Barsh, ‘Indigenous Peoples in the 1990s: From Object to Subject of International Law’, Harvard Human Rights Journal, 7, 1994, 33-86.
S. J. Anaya, ‘Indigenous Rights Norms in Contemporary International Law’, Arizona Journal of International & Comparative Law, 8, 1991, 1-41.
Megan Davis, ‘Indigenous Struggles in Standard-setting: The United Nations Declaration on the Rights of Indigenous Peoples’, Melbourne Journal of International Law, 9, 2008, 439-471.
S. J. Anaya and R. A. Williams Jr., ‘Protection of Indigenous Peoples' Rights over Lands and Natural Resources under the Inter-American Human Rights System’, Harvard Human Rights Journal, 14, 2001, 33-86
T. Ward, ‘The Right to Free, Prior, and Informed Consent: Indigenous Peoples' Participation Rights within International Law’, Northwestern University Journal of International Human Rights, 10, 2011, 54-84.

Volume 4
H. Douglas, ‘Customary Law, Sentencing and the Limits of the State’, Canadian Journal of Law and Society, 20, 1, 2005, 141-156.
G. Valencia-Weber, ‘Tribal Courts: Custom and Innovative Law’, New Mexico Law Review, 24, 1994, 225-263.
J. L. Hammond, ‘Indigenous Community Justice in the Bolivian Constitution of 2009’, Human Rights Quarterly, 33, 3, 2011, 649-681.
J. Rudin, ‘Aboriginal Over-representation and R. v. Gladue: Where We Were, Where We Are and Where We Might Be Going’, Supreme Court Law Review, 40, 2008, 689-713
E. Marchetti and K. Daly, ‘Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model’, Sydney Law Review, 29, 2007, 415-443.
R. Smandych, R. Lincoln and P. Wilson, ‘Toward a Cross-cultural Theory of Aboriginal Crime: A Comparative Study of the Problem of Aboriginal Overrepresentation in the Criminal Justice Systems of Canada and Australia’, International Criminal Justice Review, 3, 1, 1993, 1-24.
J. Cassidy, ‘The Stolen Generations-Canada and Australia: The Legacy of Assimilation’, Deakin Law Review, 11, 1, 2006, 131-177.
Sarah Deer, ‘Toward an Indigenous Jurisprudence of Rape’, Kansas Journal of Law and Public Policy, 14, 2004, 121-154.
Sherene H. Razack, ‘The Space of Difference in Law: Inquests into Aboriginal Deaths in Custody’, Somatechnics 1, 1, 2011, 87-123.
T. Janke, Our Culture, Our Future: Proposals for Recognition and Protection of Indigenous Cultural and Intellectual Property. Australian Institute of Aboriginal and Torres Strait Islander Studies, 1997, 19-42.
R. J. Coombe, ‘The Properties of Culture and the Politics of Possessing Identity: Native Claims in the Cultural Appropriation Controversy’, Canadian Journal of Law & Jurisprudence, 6, 2, 1993, 249-285.
R. L. Nagy, ‘The Scope and Bounds of Transitional Justice and the Canadian Truth and Reconciliation Commission’, International Journal of Transitional Justice, 7, 1, 2012, 52-73.
J. Corntassel and C. Holder, ‘Who’s Sorry Now? Government Apologies, Truth Commissions, and Indigenous Self-determination in Australia, Canada, Guatemala, and Peru’, Human Rights Review, 9, 4, 2008, 465-489.