AuthorTitleCitationSummaryYear
  Revisions Made to Indian Country Minor Source Nsr Program 24 No.5 Air Pollution Consultant 2.35 (2014) In a May 30, 2014 final rule (79 FR 31035-31045), EPA revised the new source review (NSR) permitting requirements for minor sources located in Indian country. First, the final rule expands the list of emission units and activities that are exempt from the tribal minor source NSR program. Second, the final rule adds definitions of begin... 2014
Allison M. Dussias Room for a (Sacred) View? American Indian Tribes Confront Visual Desecration Caused by Wind Energy Projects 38 American Indian Law Review 333 (2013-2014) I. By the Dawn's Early Light: The Wampanoag Tribe and the Cape Wind Energy Project. 336 A. The Wampanoag Tribe of Aquinnah and Nantucket Sound. 337 B. The Cape Wind Energy Project and Federal Regulatory Requirements. 340 C. The Tribe and the CWEP Federal Approval Process. 348 1. The Permit Application and NEPA Review. 348 2. NHPA Section 106... 2014
Susan Bibler Coutin , Justin Richland , Véronique Fortin Routine Exceptionality: the Plenary Power Doctrine, Immigrants, and the Indigenous under U.s. Law 4 UC Irvine Law Review 97 (March, 2014) I. Plenary Power and the Fullness of Law. 101 II. Originary Moments. 106 III. Routine Exceptionality, or Hiding in Plain Sight. 115 2014
Amelia Coates Sacred Rain Arrow: Honoring the Native American Heritage of the States While Balancing the Citizens' Constitutional Rights 38 American Indian Law Review 501 (2013-2014) Many states' histories and traditions are steeped heavily in Native American culture, which explains why tribal imagery and symbolism are prevalent in official state paraphernalia such as license plates, flags, and state seals. Problems arise for states using Native American artwork when a citizen takes offense to the religious implications of... 2014
Brenda Reddix-Smalls Satellite Remote Sensing and Database Management: Who Owns the Digitized Information Relating to Indigenous People and Their Artifacts? 37 North Carolina Central Law Review Rev. 1 (2014) Recently, two scientists used Google Earth satellite imagery to estimate the area of the fields and the size of the village of a remote tribe in Lowland South America, surrounding the Amazon Basin. This is reportedly one of the last indigenous societies experiencing limited contact with the outside world. The remote surveillance is purportedly the... 2014
Sam Grey Self-determination, Subordination, and Semantics: Rhetorical and Real-world Conflicts over the Human Rights of Indigenous Women 47 U.B.C. Law Review 495 (July, 2014) Insofar as Indigenous women have advocated for a human rights-based approach to gender injustice, and insofar as Indigenous nations have posited collective human rights as necessary for the protection of cultural distinction, these projects should be reconcilable. It is possible, in fact, to conceptualize both as a single Indigenous... 2014
Gregory S. Fisher , Erin “Faith” Rose Selling Ice in Alaska: Employment Preferences and Statutory Exemptions for Alaska Native Corporations 40 Years after Ancsa 31 Alaska Law Review Rev. 1 (June, 2014) In 1971, Congress enacted the Alaska Native Claims Settlement Act (ANCSA) in order to settle land disputes between Alaska Natives and the federal government. ANCSA established Alaska Native Corporations (ANCs), which were tasked with managing settlement funds to provide for the health, education, and economic welfare of Alaska Natives. To enable... 2014
Marisol León Silenced by Bureaucratic Adjudication: Mesoamerican Indigenous Language Speakers and Their Right to Due Process of Law 30 Harvard Journal on Racial & Ethnic Justice 339 (Spring 2014) IF A PERSON CANNOT UNDERSTAND WHAT IS HAPPENING IN THE COURTROOM PROCEEDING, AN UNFAIR RESULT MIGHT OCCUR. AND THAT IS CONTRADICTORY TO WHAT WE WANT OUR COURTS TO DO: ADMINISTER JUSTICE, FAIRLY AND IMPARTIALLY. JUDGE RICHARD S. BROWN While the federal constitution fails to recognize a litigant's right to an interpreter, several of its... 2014
  Six Additional Nsr General Permits Proposed for Minor Sources in Indian Country 24 No.6 Air Pollution Consultant 4.1 (2014) On July 17, 2014 (79 FR 41846-41871), EPA proposed six additional new source review (NSR) general permits for new or modified minor sources located in Indian country. The source categories covered by the proposed general permits are: 1) concrete batch plants, 2) boilers, 3) stationary spark ignition engines, 4) stationary compression ignition... 2014
Brandon Hammer Smooth Sailing: Why the Indian Film Industry Remains Extremely Successful in the Face of Massive Piracy 5 Harvard Journal of Sports & Entertainment Law 147 (Winter, 2014) C1-3Table of Contents I. Introduction. 148 II. India's Robust Copyright Regime. 155 A. Ample Protection. 156 B. A Host of Remedies. 159 C. Concerns About the Regime. 165 III. Lack of Enforcement. 167 A. The Ineffectiveness of Judicial Proceedings. 167 B. Lack of Police Cooperation. 170 C. Lack of International Cooperation. 171 IV. Enforcement-Based... 2014
Marc Galanter Snakes and Ladders: Suo Moto Intervention and the Indian Judiciary 10 FIU Law Review 69 (Fall 2014) Legal systems are hierarchical constructions, some taller and deeper, some shallower, and commonly portrayed as an orderly pyramid. Sometimes an incident in this hierarchic landscape reminds us that, as in a game of snakes and ladders, there may be startling and unexpected connections (and disconnects) between different locations in the system. I... 2014
Rehan Abeyratne Socioeconomic Rights in the Indian Constitution: Toward a Broader Conception of Legitimacy 39 Brooklyn Journal of International Law L. 1 (2014) Introduction. 2 I. Theoretical Framework. 8 A. Justice as Fairness. 8 B. The Constraint of Public Reason. 14 1. A Shift in Rawlsian Thought. 14 2. Public Reason and the Supreme Court. 16 C. Socioeconomic Rights as Constitutional Rights. 17 1. The Democratic Objection. 20 2. The Contractarian Objection. 22 II. The Framing of the Indian Constitution.... 2014
Matthew Deisen STATE V. JIM: A NEW ERA IN WASHINGTON'S TREATMENT OF THE TRIBES? 38 American Indian Law Review 101 (2013-2014) I. Introduction. 101 II. Background. 105 A. The Treaty. 107 B. Treaty Interpretation. 112 C. Fishing Sites and the Right of Access. 114 III. Enemy of the State: A History of Washington and Its Tribes. 117 A. Washington, Tribes, and Fish. 118 B. State v. Jim. 122 IV. Criminal Jurisdiction in Indian Country. 124 A. The Federal/Tribal Relationship.... 2014
Erin Marie Erhardt States Versus Tribes: the Problem of Multiple Taxation of Non-indian Oil and Gas Leases on Indian Reservations 38 American Indian Law Review 533 (2013-2014) Taxation of business operations on Indian land presents a murky issue, particularly when the business operations involve non-tribal members engaging in business on Indian lands. One context where this issue often arises is in the field of natural resources. Because oil and gas are such important commodities, not just on and off American Indian... 2014
Jane Burke The "Baby Veronica" Case: Current Implementation Problems of the Indian Child Welfare Act 60 Wayne Law Review 307 (Spring, 2014) Save Veronica has become a common phrase in the American South over the past year. It appears on the signs of local businesses, is stamped on light purple bracelets, and is the rallying cry for fundraisers, candlelight vigils, and cupcake sales on holidays. It is the topic of many newspaper articles and television news broadcasts and was recently... 2014
Eleanor Marie Lawrence Brown The Blacks Who "Got Their Forty Acres": a Theory of Black West Indian Migrant Asset Acquisition 89 New York University Law Review 27 (April, 2014) The impediments to property acquisition and market success among African Americans are a significant area of inquiry in legal scholarship. The prevailing narrative on the historical relationship between Blacks and property is overwhelmingly focused on loss. However, in the political science, economics, and sociology literatures there is a... 2014
Curtis G. Berkey , Managing Partner, Berkey Williams LLP The California Life Protection Act and Indian Tribes: a New Era of Collaboration in Protecting Marine and Cultural Resources 2014 Aspatore 2326379 (April, 2014) For much of the history of Indian tribes in California, the US Supreme Court's characterization of states as the deadliest enemies of the tribes has been all too accurate. California's Indian policies have run the gamut from physical extermination of Indian people; assimilation; indifference; and, in the latter decades of the twentieth century, a... 2014
Curtis G. Berkey , Managing Partner, Berkey Williams LLP THE CALIFORNIA LIFE PROTECTION ACT AND INDIAN TRIBES: A NEW ERA OF COLLABORATION IN PROTECTING MARINE AND CULTURAL RESOURCES 2014 Aspatore 2326379 (April, 2014) For much of the history of Indian tribes in California, the US Supreme Court's characterization of states as the deadliest enemies of the tribes has been all too accurate. California's Indian policies have run the gamut from physical extermination of Indian people; assimilation; indifference; and, in the latter decades of the twentieth century, a... 2014
Winston P. Nagan , Craig Hammer The Conceptual and Jurisprudential Aspects of Property in the Context of the Fundamental Rights of Indigenous People: the Case of the Shuar of Ecuador 58 New York Law School Law Review 875 (2013/2014) The conceptual and jurisprudential basis of property in indigenous culture differs from notions of property, especially private property, in the modern economic order. Private property is a central and pivotal precept in the modern economic order; it holds a place of primacy and deference. In part, this is because private property functions... 2014
Shawn E. Regan , Terry L. Anderson The Energy Wealth of Indian Nations 3 LSU Journal of Energy Law & Resources 195 (Fall, 2014) Economists have long sought to explain why some nations are rich while others are poor. Although the recipe for growth remains a matter of debate, most agree that secure property rights and a stable rule of law are necessary ingredients for economic growth. Property rights provide incentives to generate wealth, encourage resource stewardship, and... 2014
Sarah Melz The Epa, Outer Continental Shelf Sources, and Deference Resisting Environmental Destruction on Indigenous Lands 20 Journal of Environmental and Sustainability Law 133 (Spring, 2014) The Environmental Protection Agency (EPA) receives much criticism. There are people and groups who think the agency puts too many unnecessary restrictions on businesses, an argument that is more charged than usual during the current strained economic situation in the United States. Conversely, there are those who believe the EPA does not go far... 2014
Joseph William Singer The Indian States of America: Parallel Universes & Overlapping Sovereignty 38 American Indian Law Review Rev. 1 (2013-2014) We live in the United States of America. Or do we? Look at a typical map of the United States. It shows the external borders of the country and, of course, the states, which are pretty important in our political system, as the meeting of the Electoral College following the 2012 popular election reminded us. This is the map most of us grew up with.... 2014
Hon. Elizabeth Ann Kronk Warner The Miner's Canary Foretelling the Fate of the World: Climate Change and Native Communities 61-APR Federal Lawyer Law. 4 (April, 2014) At this very moment, entire communities in the United States are threatened with total annihilation. Increasingly intense super storms and massive erosion menace these communities, and the possibility of being swept into the ocean always looms large on the horizon. The scene is not part of a screenplay for a major Hollywood production, but,... 2014
Lauren Sampson The Obscenities of this Country : Canada V. Bedford and the Reform of Canadian Prostitution Laws 22 Duke Journal of Gender Law & Policy 137 (Fall 2014) In February 2002, following a search for illegal weapons that turned up the belongings of several missing women, the Vancouver Police Department laid charges of first-degree murder against Robert Pickton for the deaths of Sereena Abotsway and Mona Wilson, two Aboriginal women working as street-level prostitutes in Vancouver's Downtown Eastside.... 2014
F. Michael Willis The Power to Tax Economic Activity in Indian Country 28-SPG Natural Resources & Environment Env't 8 (Spring, 2014) As Chief Justice John Marshall wrote nearly two centuries ago, the power to tax involves the power to destroy. McCulloch v. Maryland, 17 U.S. 316, 431 (1819). In McCulloch, the Court held that a state tax on an instrumentality created by Congress was unconstitutional. Not long after McCulloch, the Supreme Court invalidated the application of a... 2014
Justin Nyberg The Promise of Indian Water Leasing: an Examination of One Tribe's Success at Brokering its Surplus Water Rights 55 Natural Resources Journal 181 (Fall 2014) After reaching water rights settlements, a number of Native American tribes find themselves with rights to more water than their reservations or pueblo communities presently need. As climate change exacerbates drought conditions in the western United States and demand for water increases, some tribes have leased these surplus water rights to public... 2014
Marcia A. Zug The Real Impact of Adoptive Couple V. Baby Girl: the Existing Indian Family Doctrine Is Not Affirmed, but the Future of the Icwa's Placement Preferences Is Jeopardized 42 Capital University Law Review 327 (Spring, 2014) On July 3, 2013, Dusten Brown, his wife-Robin-and Brown's parents-Tommy and Alice Brown-filed actions to adopt Baby Veronica, the four-year-old girl at the heart of the United States Supreme Court's recent decision in Adoptive Couple v. Baby Girl. The Browns based their adoption petitions on the Indian preference provisions of the Indian Child... 2014
SGM (Retired) Gunther M. Nothnagel The Second Sgm John A. Nicolai Leadership Lecture 219 Military Law Review 247 (Spring, 2014) It is certainly a pleasure for me to be here today. You will have to pardon me; it is a bit of nostalgia for me to be here. I first arrived here so many years back, it is kind of hard to remember now--it was 1972 when Charlottesville--the outer end of Charlottesville is now where K-Mart is, if that tells you anything. It has grown. I mean, it is... 2014
Matthew L.M. Fletcher The Seminole Tribe and the Origins of Indian Gaming 9 FIU Law Review 255 (Spring 2014) The Seminole Tribe of Florida (Tribe) has played, perhaps, the most important role in the origins and development of Indian gaming in the United States of any single tribe. The Tribe opened the first tribally owned, high stakes bingo hall in 1979. The Tribe, in 1981, was involved in one of the earliest lower court decisions, which formed the... 2014
M. Gatsby Miller THE SHRINKING SOVEREIGN: TRIBAL ADJUDICATORY JURISDICTION OVER NONMEMBERS IN CIVIL CASES 114 Columbia Law Review 1825 (November, 2014) Tribal jurisdiction over nonmembers is limited to two narrow areas: consensual economic relationships between tribes and nonmembers, and nonmember activity that threatens tribal integrity. Even within these two narrow fields, the Supreme Court has stated that tribal adjudicatory power over nonmembers--the authority to decide legal rights of... 2014
J. Matthew Martin The Supreme Court Erects a Fence Around Indian Gaming 39 Oklahoma City University Law Review 45 (Spring 2014) On June 18, 2012, the United States Supreme Court established an almost insurmountable boundary for American Indian tribes seeking to establish Indian gaming on lands newly taken into trust by the Secretary of the Interior. In Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, the Supreme Court allowed a private suit to proceed... 2014
Shawn L. Murphy The Supreme Court's Revitalization of the Dying "Existing Indian Family" Exception 46 McGeorge Law Review 629 (2014) C1-2Table of Contents I. Introduction. 630 II. Background: What is the Indian Child Welfare Act and the Existing Indian Family Exception?. 631 A. History of ICWA. 631 B. To Whom and When Does ICWA Apply?. 632 C. What Does ICWA Provide?. 633 1. ICWA as a Jurisdictional Statute. 633 2. ICWA Provides Special Protections for Indian Parents and... 2014
Renisa Mawani, Iza Hussin The Travels of Law: Indian Ocean Itineraries 32 Law and History Review 733 (November, 2014) I believe that no country ever stood so much in need of a code of laws as India; and I believe also that there never was a country in which the want might so easily be supplied. I said that there were many points of analogy between the state of that country after the fall of the Mogul power, and the state of Europe after the fall of the Roman... 2014
Rohit De, Department of History, Yale University Tools of Justice: Non-discrimination and the Indian Constitution. By Kalpana Kannabiran. New Delhi: Routledge, 2012. 505 Pp. Rs 995, $105.00 Cloth 48 Law and Society Review 687 (September, 2014) The Indian Constitution promulgated in 1950 created, in the words of its chief draftsman Dr Ambedkar, a life of contradictions. It ushered in universal adult suffrage and a judicially enforced bill of rights to a population that was marked by stark inequalities of caste, gender, religion, and class. The constitutional values were not part of the... 2014
Lindsay Short Tradition Versus Power: When Indigenous Customs and State Laws Conflict 15 Chicago Journal of International Law 376 (Summer 2014) Indigenous societies have received increasing attention in recent years. Notably, scholars and the international law community have gradually, but increasingly, recognized indigenous groups' autonomy in past decades. Against this backdrop, indigenous groups have largely continued to maintain their own distinct customs and practices, including their... 2014
Matthew L.M. Fletcher , Kathryn E. Fort , Dr. Nicholas J. Reo Tribal Disruption and Indian Claims 112 Michigan Law Review First Impressions 65 (January, 2014) Legal claims are inherently disruptive. Plaintiffs' suits invariably seek to unsettle the status quo. On occasion, the remedies to legal claims can be so disruptive--that is, impossible to enforce or implement in a fair and equitable manner--that courts simply will not issue them. In the area of federal Indian law, American Indian tribal claims not... 2014
Jeanette Wolfley Tribal Environmental Programs: Providing Meaningful Involvement and Fair Treatment 29 Journal of Environmental Law & Litigation 389 (2014) Introduction. 390 I. Background of Tribal Environmental Authority. 393 II. Policies Supporting Meaningful Involvement and Fair Treatment. 399 A. Providing Good Governance. 400 B. Respecting the Interests of Community Members. 402 C. Protecting and Promoting Tribal Sovereignty. 405 III. Defining Meaningful Involvement and Fair Treatment . 409 A.... 2014
Gregory S. Arnold Tribal Law and Order Act and Violence Against Women Act: Enhanced Recognition of Inherent Tribal Sovereignty Creates Greater Need for Criminal Defense Counsel in Indian Country 61-FEB Federal Lawyer Law. 4 (January/February, 2014) Starting with the Indian Civil Rights Act of 1968 (the ICRA), Native American Indian tribes were limited in sentencing Indian criminal defendants to a maximum of only six months in jail and / or a $500 fine, including murder and other violent felonies, and had no criminal authority over non-Indians. This was first strengthened by amendment in... 2014
Christopher Deluzio TRIBES AND RACE: THE COURT'S MISSED OPPORTUNITY IN ADOPTIVE COUPLE V. BABY GIRL 34 Pace Law Review 509 (Spring, 2014) Adoption policy in the United States has unequivocally embraced the idea that every child, irrespective of race, has an equal right to a loving home and supportive parents. To that end, public adoption agencies and family courts are largely barred from considering the race of either the child or the couple seeking adoption when deciding custody and... 2014
Joseph G.E. Gousse Waiting for Gluskabe: an Examination of Maine's Colonialist Legacy Suffered by Native American Tribes under the Maine Indian Claims Settlement Act of 1980 66 Maine Law Review 535 (2014) I. Introduction II. A Brief History of Colonial, Federal, and State Intercourse with Native Americans in the United States, Massachusetts, and Post-1820 Maine A. European Conquest and the American Non-Intercourse Act of 1790 B. A Brief History of Tribal Land Transactions in Massachusetts and Maine C. Road to Restitution?: Paving the Path for the... 2014
Marc Galanter , Manuel A. Gómez Waiting for Mendeleev: the Tangle of Indigenous Law 10 FIU Law Review Rev. 1 (Fall 2014) [On learning about Mendeleev's table] For the first time I saw a medley of haphazard facts fall into line and order. All the jumbles and recipes and hotchpotch of the inorganic chemistry of my boyhood seemed to fit themselves into the scheme before my eyes - as though one were standing beside a jungle and it suddenly transformed itself into a... 2014
Helaman “Helo” Hancock Welcome from the Chair of the Indian Law Section 57-OCT Advocate 26 (October, 2014) Treat all men alike . give them all the same law. Give them all an even chance to live and grow. You might as well expect the rivers to run backward as that any man who is born a free man should be contented when penned up and denied liberty to go where he pleases. We only ask an even chance to live as other men live. We ask to be recognized as... 2014
Jean Dennison , University of North Carolina, Chapel Hill Whitewashing Indigenous Oklahoma and Chicano Arizona: 21st-century Legal Mechanisms of Settlement 37 PoLAR: Political and Legal Anthropology Review 162 (May, 2014) This article interrogates the various tactics settler colonial legal systems use in establishing and entrenching authority over territories. By comparing a recent Osage Nation reservation court case with Arizona House Bill (HB) 2281, enacted into law as Ariz. Rev. Stats. § 15-112, which has been used to ban Mexican American/Raza Studies (MARS) from... 2014
SANFORD LEVINSON Who Counts? "Sez Who?" 58 Saint Louis University Law Journal 937 (Summer 2014) When Professor Joel Goldstein called to offer me the opportunity to deliver the 2013 Childress Lecture, I was, of course, immensely flattered, albeit immediately intimidated when he added that it would include the participation as well of a daunting group of commentators. That did not, of course, prevent me from accepting, though it did lead to... 2014
Stacy L. Leeds , Erin S. Shirl Whose Sovereignty? Tribal Citizenship, Federal Indian Law, and Globalization 46 Arizona State Law Journal 89 (Spring 2014) This Article is adapted from a speech given by Stacy Leeds at the Sixth Annual Canby Lecture Series held at Arizona State University's Sandra Day O'Connor College of Law. Stacy Leeds is the Dean of the University of Arkansas Law School, which recently launched a new Indigenous Food and Agriculture Initiative to complement their long-standing LL.M.... 2014
Julie Sobotta Kane Why Applying the Indian Child Welfare Act Is Worth the Hassle 57-OCT Advocate 28 (October, 2014) After practicing for many years in the area of Indian Law, I often heard complaints about the application of the Indian Child Welfare Act (ICWA) in child protection cases. The Act requires state courts to notify Indian Tribes when members of their tribes are subjects of a proceeding. It also requires higher standards of proof when placing children... 2014
Zachary Diionno , Sommerset Wong Winner, Best Appellate Brief in the 2013 Native American Law Student Association Moot Court Competition 38 American Indian Law Review 305 (2013-2014) I. Does the Cush-Hook Nation, a tribe in existence since time immemorial, maintain aboriginal title to their ancestral lands situated in modern-day Kelley Point Park when that title has never been extinguished? II. Does Oregon have criminal jurisdiction to regulate the use of, and to protect, the culturally and religiously significant tribal... 2014
Matthew L.M. Fletcher (Re)solving the Tribal No-forum Conundrum: Michigan V. Bay Mills Indian Community 123 Yale Law Journal Online 311 (11/18/2013) Michigan v. Bay Mills Indian Community, a dispute over a controversial off-reservation Indian casino, is the latest opportunity for the Supreme Court to address the doctrine of tribal sovereign immunity. The Court could hand Michigan a big win by broadly abrogating tribal immunity, and in turn wreak havoc on modern tribal governance. Alternately,... 2013
Hope M. Babcock [This] I Know from My Grandfather: the Battle for Admissibility of Indigenous Oral History as Proof of Tribal Land Claims 37 American Indian Law Review 19 (2012-2013) A major obstacle indigenous land claimants must face is the application of federal evidentiary rules, like the hearsay doctrine, which block the use of oral history to establish legal claims. It is often oral history and stories that tribes rely upon as evidence to support their claims, reducing substantially the likelihood of a tribe prevailing.... 2013
Kelsey Vujnich A Brief Overview of the Indian Child Welfare Act, State Court Responses, and Actions Taken in the past Decade to Improve Implementation Outcomes 26 Journal of the American Academy of Matrimonial Lawyers 183 (2013) Since the Indian Child Welfare Act (hereafter ICWA) was adopted in 1978 by the U.S. Congress, various courts have struggled with its application, at times coming to different conclusions regarding various terms in the statute and producing different outcomes by state. Differences among state court decisions range from philosophical differences as... 2013
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