AuthorTitleCitationSummaryYear
Kathryn E. Fort THE VANISHING INDIAN RETURNS: TRIBES, POPULAR ORIGINALISM, AND THE SUPREME COURT 57 Saint Louis University Law Journal 297 (Winter 2013) As the nation faces cultural divides over the meaning of the Founding, the Constitution, and who owns these meanings, the Court's embrace of originalism is one strand that feeds the divide. The Court's valuing of the original interpretation of the Constitution has reinforced the Founder fetishism also found in popular culture, specifically within... 2013
Edna Udobong Trends in Cross-border Lawyering: the Gats Ideal or the Indian Reality for U.s. Lawyers? 43 California Western International Law Journal 343 (Spring 2013) This article analyzes the impact of the challenges posed by recent developments in cross-border legal services. It examines the General Agreement on Trade in Services (GATS), its provisions on trade in legal services, and its implications for cross-border lawyering for U.S. lawyers. Recognizing the growing global context of the practice of law, the... 2013
Alexis E. Applegate TRIBAL AUTHORITY TO ZONE NONMEMBER FEE LAND USING THE FIRST MONTANA EXCEPTION: A GAME OF CHECKERS TRIBES CAN WIN 40 Boston College Environmental Affairs Law Review 159 (2013) Abstract: The modern Congress and executive branch generally recognize that American Indian tribes retain their inherent sovereign authority over people and property within Indian Country unless Congress previously acted to limit that authority. The Supreme Court, however, has incrementally departed from this recognition of inherent sovereign... 2013
Matthew L.M. Fletcher Tribal Membership and Indian Nationhood 37 American Indian Law Review Rev. 1 (2012-2013) American Indian tribes are in a crisis of identity. No one can rationally devise a boundary line between who is an American Indian and who is not. And yet, each federally recognized tribe has devised a legal standard to apply in deciding who is a member and who is not. Despite some ambiguity and much litigation, these are relatively bright lines.... 2013
Matthew L.M. Fletcher TRIBAL MEMBERSHIP AND INDIAN NATIONHOOD 37 American Indian Law Review 1 (2012-2013) American Indian tribes are in a crisis of identity. No one can rationally devise a boundary line between who is an American Indian and who is not. And yet, each federally recognized tribe has devised a legal standard to apply in deciding who is a member and who is not. Despite some ambiguity and much litigation, these are relatively bright lines.... 2013
Keith C. Smith , Senior Partner and Owner, Smith Shellenberger & Salazar LLC TRIBAL MEMBERSHIP: ITS ROLE AND APPLICATION 2013 Aspatore 5293041 (October, 2013) After completing my undergraduate work in Boulder, Colorado and attaining a bachelor's degree in political science, I started law school at Arizona State University (ASU) Sandra Day O'Connor College of Law. After graduating in 1997, I immediately started working for my tribe's legal service organization--DNA People's Legal Service Incorporated. I... 2013
Kristen A. Carpenter , Angela R. Riley TRIBAL RIGHTS, HUMAN RIGHTS 2013 Michigan State Law Review 293 (2013) Introduction. 293 I. Professor Singel's Contributions to Legal Scholarship. 294 II. Tribal Rights, Human Rights: A Research Agenda. 302 Conclusion. 306 We appreciate the opportunity to participate in this symposium, convened to examine Professor Wenona Singel's article, Indian Tribes and Human Rights Accountability. Amongst her many professional... 2013
Joseph William Singer TRIBAL SOVEREIGNTY AND HUMAN RIGHTS 2013 Michigan State Law Review 307 (2013) Introduction. 305 I. Sovereignty and Humanity. 309 II. Reason-Giving and Accountability. 314 A. Internal Versus External Accountability. 315 B. Judicial Versus Political Accountability. 317 C. Bilateral Versus Multilateral External Accountability. 319 III. An Intertribal Human Rights Tribunal. 320 Many Americans have a hard time understanding the... 2013
J. Stanford Hays Twisting the Law: Legal Inconsistencies in Andrew Jackson's Treatment of Native-american Sovereignty and State Sovereignty 21 Journal of Southern Legal History 157 (2013) The basic principles of Native-American law pre-date the discovery of the New World and the creation of the United States Constitution. The laws that governed the Europeans when they first came in contact with the original native inhabitants were the laws of nations, based on the concept of natural rights. The theory of natural rights respected the... 2013
Katherine Robillard Uncounseled Tribal Court Convictions: the Sixth Amendment, Tribal Sovereignty, and the Indian Civil Rights Act 2013 University of Illinois Law Review 2047 (2013) Tribal courts tasked with the prosecution of Native American defendants are not constrained by many Constitutional provisions, including the Sixth Amendment right to counsel in criminal proceedings. Currently, the Indian Civil Rights Act only requires representation in tribal court prosecutions of indigent defendants that may lead to incarceration... 2013
Christiana M. Martenson UNCOUNSELED TRIBAL COURT GUILTY PLEAS IN STATE AND FEDERAL COURTS: INDIVIDUAL RIGHTS VERSUS TRIBAL SELF-GOVERNANCE 111 Michigan Law Review 617 (February, 2013) Indian tribes in the United States are separate sovereigns with inherent self-governing authority. As a result, the Bill of Rights does not directly bind the tribes, and criminal defendants in tribal courts do not enjoy the protection of the Sixth Amendment right to counsel. In United States v. Ant, a defendant-- without the legal assistance that a... 2013
Anna Cowan Undrip and the Intervention: Indigenous Self-determination, Participation, and Racial Discrimination in the Northern Territory of Australia 22 Pacific Rim Law & Policy Journal 247 (March, 2013) The adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) by the General Assembly in 2007 was a landmark achievement in the development of indigenous rights under international law, particularly through its unequivocal recognition of indigenous peoples' right to self-determination. That same year,... 2013
Daniel Donovan, John Rhodes Update: Who Is an Indian? 38-APR Montana Lawyer 28 (April, 2013) Last year, we published an article in the Montana Law Review reviewing who is an Indian for federal criminal jurisdiction purposes in Indian Country cases. This Indian jurisprudence has centered in the Ninth Circuit. Case after case arose off of Montana's Indian reservations. From the High-Line reservations the cases worked their way to federal... 2013
L. Reagan Florence When Ferae Naturae Attack: Public Policy Implications and Concerns for the Public and State Regarding the Classification of Indigenous Wildlife as Interpreted under State Immunity Statutes 35 Hamline Journal of Public Law and Policy 157 (Fall, 2013) All meanings, we know, depend on the key of interpretation --George Eliot On a family campout an 11-year-old boy is stolen, still in his sleeping bag-- dragged in the middle of the night from his tent by a wild black bear--the boy is mauled to death. This gruesome and tragic incident sparked a recent perplexing court decision that has unhinged... 2013
James D. Diamond , Attorney, Cacace Tusch & Santagata WHO CONTROLS TRIBAL MEMBERSHIP? THE LEGAL BACKGROUND OF DISENROLLMENT AND TRIBAL MEMBERSHIP LITIGATION 2013 Aspatore 5293043 (October, 2013) In the case of most American Indian tribes, the tribes themselves have historically had the power to determine tribal membership. For centuries, American Indian tribes banished people as punishment for serious offenses. In recent years, however, a trend has been evident with tribes canceling membership, or disenrolling tribal members, due to... 2013
Rich Acello Who's Zoomin' Who? 99-FEB ABA Journal 11 (February, 2013) First there was the outsourcing of routine legal work by American firms to Indian subcontractors. Now Indian lawyers are getting outsourced by the new trend in their country: DIY legal businesses much like Legal Zoom or Nolo in the U.S. These Indian businesses include VakilSearch and TM Guru, and they use technology and a back end staffed by... 2013
Swethaa Ballakrishnen Why Is Gender a Form of Diversity?: Rising Advantages for Women in Global Indian Law Firms 20 Indiana Journal of Global Legal Studies 1261 (2013) Introduction Following market liberalization in 1991, the Indian legal profession has had more demands for cross-national legal services than ever before. One of the ways in which the country has responded to this new work and clientele is by reorganizing its professional spaces in new, competitive ways. On the one hand, there has been a burgeoning... 2013
Jocelyn Jenks , Jacquelyn Amour Jampolsky Winner, Best Appellate Brief in the 2012 Native American Law Student Association Moot Court Competition 37 American Indian Law Review 323 (2012-2013) The Native Molokinians are the original inhabitants of Molokini. (Problem ¶ 1.) They are the only Native group within the Pacific Islands and they currently make up the state of Molokini. (Id.) Since time immemorial, the Native Molokinians have been self-governing and have a highly sophisticated form of government. (Id.) In the early seventeenth... 2013
Angelique Townsend Eaglewoman , (Wambdi A. Wastewin) Wintertime for the Sisseton-wahpeton Oyate: over One Hundred Fifty Years of Human Rights Violations by the United States and the Need for a Reconciliation Involving International Indigenous Human Rights Norms 39 William Mitchell Law Review 486 (2013) I. The Need to Address Ongoing Human Rights Violations. 487 II. Historical Interaction with the Whites from Trading Posts to U.S. Treaties. 488 A. Dakota Commerce with French and British Trading Posts. 490 B. U.S. Treaties with the Dakota Peoples in 1805, 1825, 1830, 1836, and 1837. 491 C. The Treaties of 1851 and the Washington D.C. Treaties of... 2013
Jasmine Owens "HISTORIC" IN A BAD WAY: HOW THE TRIBAL LAW AND ORDER ACT CONTINUES THE AMERICAN TRADITION OF PROVIDING INADEQUATE PROTECTION TO AMERICAN INDIAN AND ALASKA NATIVE RAPE VICTIMS 102 Journal of Criminal Law and Criminology 497 (Spring 2012) Four different men, Earl Pratt of Massachusetts, Wendell Lee Strickland of Arkansas, Ronnie Tom of Washington, and Tommy Lee Johnson of Texas, committed heinous crimes against children. Each man raped a seven-year-old child in his respective state, and each was convicted and sentenced for his crime. Despite general disdain for egregious crimes such... 2012
Douglas Nash A Book Review: Reservation "Capitalism:" Economic Development in Indian Country (Praeger 2012) by Robert J. Miller, Associate Professor of Law Lewis & Clark Law School 10 Seattle Journal for Social Justice 829 (Spring, 2012) The concept of economic development sounds deceptively simple. Build a product. Sell consumer goods. Provide a service. Advertise. Generate income that can be used, in turn, to buy goods and services from others. In reality, economic development generally, and the development of an economy specifically, is far from simple. This is especially true... 2012
Benjamin J. Fosland A Case of Not-so-fatal Flaws: Re-evaluating the Indian Tribal Energy Development and Self-determination Act 48 Idaho Law Review 447 (2012) C1-3TABLE OF CONTENTS I. INTRODUCTION. 447 II. HISTORY AND BACKGROUND. 449 A. Federal Law Before the Indian Tribal Energy Development and Self-Determination Act. 449 B. Current System for Indian Reservation Energy Development. 451 III. DISCUSSION. 452 A. ITEDSA: What Is It and How Does It Work?. 452 B. Critical Evaluation of Anticipated Challenges... 2012
Gavin Kentch A Corporate Culture? The Environmental Justice Challenges of the Alaska Native Claims Settlement Act 81 Mississippi Law Journal 813 (2012) L1-2Introduction . R3813. I. Historical Background: ANCSA and the Creation of the Alaska Native Corporations. 814 II. Analysis. 819 A. Theory: An Imperfect Solution? Native Corporations and Procedural Justice. 819 1. Board of Directors Composition and Village Access to Decision Making. 820 2. Proxies and Afterborns. 822 3. Village Corporations vs.... 2012
Lloyd B. Miller A Most Unusual Alliance: Indian Tribes and Military Contractors Vindicate First Principles in the Ramah Litigation 59-NOV Federal Lawyer 48 (October/November, 2012) On June 18, 2012, the Supreme Court reaffirmed a bedrock contract law principle: when an agency over-commits itself to pay too many contracts, government contractors who have fully performed retain enforceable rights to be paid in full and can recover damages for any underpayment. In so doing, the Court rolled back an effort by the United States to... 2012
Andrea L. Johnson A Perfect Storm: the U.s. Anti-trafficking Regime's Failure to Stop the Sex Trafficking of American Indian Women and Girls 43 Columbia Human Rights Law Review 617 (Spring, 2012) In 2001, the United States Department of State ceremoniously revealed its inaugural Trafficking In Persons (TIP) Report, nine months after the passage of the Trafficking Victims Protection Act (TVPA)--the first comprehensive federal law to address human trafficking. The introduction to the statutorily mandated report included a bold statement: The... 2012
Tonya Kowalski A TALE OF TWO SOVEREIGNS: DANGER AND OPPORTUNITY IN TRIBAL-STATE COURT RELATIONS 47 Tulsa Law Review 687 (Spring 2012) As the many Native American nations garner economic strength and come into increasing contact with state and local forums, so do the chances that those forums will come face to face with questions of tribal law. The challenges posed by an Anglo-American court answering questions of tribal law present both danger and opportunity. Opportunities come... 2012
Aaron J. Stewart Acting for the Left Behind: How the Native Class Act Could Close the Gaps in American Indian Education 36 American Indian Law Review 347 (2012) A new bill in the Senate has many American Indians wondering whether the educational future of Native peoples is indeed bright, or whether the status quo will continue. On June 23, 2011, Senator Daniel Akaka introduced the Native Culture, Language, and Access for Success in Schools Act (Native CLASS Act). This bill's current thrust is to amend... 2012
Richard J. Schroeder , Partner, Davis Wright Tremaine LLP Advising Lenders of the Intricacies and Potential Hazards Involved in Participating in Commercial Transactions with Indian Tribes 2012 Aspatore 5898577 (2012) A lender considering entering into a finance transaction has to evaluate the 3 Cs: Character/Credit-Does the borrower have a history of creditworthiness? The attorney's credit issues for tribal borrowers are whether the tribe has adopted commercial ordinances or laws that support recognition and enforcement of a lender's rights to enforce... 2012
Ryan D. Dreveskracht Alternative Energy in American Indian Country: Catering to Both Sides of the Coin 33 Energy Law Journal 431 (2012) Synopsis: This article looks at both sides of the renewable energy coin in relation to American Indian country. On the one side, it appears that tribal governments are opposed to any energy development on their lands. All told, however, this couldn't be further from the truth - tribes merely seek a seat at the table when decisions are made... 2012
Kimberly Hausbeck, Northern Kentucky University Alvin J. Ziontz. A Lawyer in Indian Country: a Memoir. Seattle: University of Washington Press, 2009. 328 Pp. $27.95 (Cloth) 52 American Journal of Legal History 572 (October, 2012) This book is a good read. With vignettes in it describing every-thing from Marlon Brando's involvement in the Indian fishing rights struggle of the 1960s to behind-the-scenes details of at least seven major Federal Indian law cases brought before the U.S. Supreme Court, Ziontz's memoir is both an interesting and compelling narrative. Even lawyers... 2012
Quintin Cushner, Jon M. Sands Blood Should Not Tell 59-APR Federal Lawyer 31 (April, 2012) Blood should no longer play a leading role in determining whether a person is an Indian for purposes of federal criminal jurisdiction. The blood test evokes racial language in our jurisprudence that is outdated and unnecessary in 2012. A better test would discard blood and focus entirely on whether the person is enrolled or eligible for enrollment... 2012
Angelique Townsend EagleWoman , Wambdi A. Wastewin BRINGING BALANCE TO MID-NORTH AMERICA: RE-STRUCTURING THE SOVEREIGN RELATIONSHIPS BETWEEN TRIBAL NATIONS AND THE UNITED STATES 41 University of Baltimore Law Review 671 (Summer 2012) The relationships between Tribal Nations and the United States have evolved over time and often in a lopsided manner, with the branches of the U.S. government unilaterally dictating the relationship. International norms require bilateral agreements between governments for full recognition of human rights and to promote peaceful relations. In the... 2012
Benjamin Hochberg Bringing Jim Thorpe Home: Inconsistencies in the Native American Graves and Repatriation Act 13 Rutgers Race & the Law Review 83 (2012) Yes. That order did not come from God. Justice, That dwells with the gods below, knows no such law. I did not think your edicts strong enough To overrule the unwritten unalterable laws Of God and heaven, you being only a man. The body of the greatest Native American athlete was sold in a midnight exchange for the benefit of local tourism. In... 2012
Jeffrey Aslan Building Alaska Native Village Resilience in a Post-peak World 37 Vermont Law Review 239 (Fall, 2012) The Vermont Law Review established the Ballenger-Green Memorial Diversity Paper in 2001 to commemorate the lives of Vermont Law School students Chandra Ballenger '02 and Orlando Green '01. The Ballenger-Green Paper is an opportunity for any student to address issues of human diversity through legal scholarship. Each year a paper is selected from... 2012
Amanda L. Cartwright , U.S. Bankruptcy Court, (D. Del.); Wilmington Can Native American-owned Casinos File for Chapter 11? 31-OCT American Bankruptcy Institute Journal 50 (October, 2012) For the first time, a bankruptcy court will decide the issue of whether a Native American-owned casino is eligible to file for bankruptcy under the Bankruptcy Code. On July 2, 2012, the Santa Ysabel Resort and Casino filed for chapter 11 protection in the U.S. Bankruptcy Court for the Southern District of California. Wholly owned by lipay Nation... 2012
Val Napoleon Chapter 11 Thinking about Indigenous Legal Orders 17 IUS Gentium 229 (2012) Indigenous law can be hard to see when we are used to seeing law as something the Canadian government or police make or do. Some people may even have been taught that Indigenous people did not have law before white people came here. This is a lie. Law can be found in how groups deal with safety, how they make decisions and solve problems together,... 2012
  Chapter 20 • Native American Resources 2012 ABA Environment, Energy, and Resources Law: The Year in Review 202 (2012) In Salazar v. Ramah Navajo Chapter, the Supreme Court held that the federal government is required to pay full contract support costs to Indian tribes who contract for services under the Indian Self-Determination and Education Assistance Act (Act). Under the Act, the Department of Interior is directed to enter into self-determination contracts on... 2012
Claire Chiamulera Charting New Territory 31 No.3 Child Law Practice 43 (March, 2012) Tucked in the desert 20 miles south of Phoenix, Arizona sits the Gila River Indian Community, home to members of the Pima and Maricopa tribes. Among its seven districts, Sacaton serves as the community's unofficial capital. Here sits the community's tribal court, a beautiful modern structure with a southwestern design. The ABA Child Welfare Trial... 2012
Ashley E. Brennan Child Abuse Is Color Blind: Why the Involuntary Termination of Parental Rights Provision of the Indian Child Welfare Act Should Be Reformed 89 University of Detroit Mercy Law Review 257 (Winter 2012) I. Purpose of the ICWA. 258 II. ITPR Proceedings--In General. 261 A. ITPR Proceedings in Michigan. 261 B. ITPR Proceedings Pursuant to the ICWA. 263 C. Three Key Differences between ICWA and Michigan ITPR Laws. 265 III. The Need for Reform. 267 A. Statistical Illustrations. 267 B. The Purposes Underlying the Enactment of the ICWA do not Support the... 2012
Andrea K. Wilkins Children, Tribes, and States: Adoption and Custody Conflicts over American Indian Children by Barbara Ann Atwood 315 Pp.; $42 Carolina Academic Press, 2010 700 Kent St., Durham, Nc 27701 (919) 489-7486 41-JAN Colorado Lawyer 85 (January, 2012) Children, Tribes, and States, by Barbara Ann Atwood, provides an overview of some of the basic holdings of American Indian law, including those involving Indian identity as a legal and political status, tribal sovereignty, questions of jurisdiction, and the intersection of tribal, state, and federal law involving implementation of the Indian Child... 2012
S. James Boumil III China's Indigenous Innovation Policies under the Trips and Gpa Agreements and Alternatives for Promoting Economic Growth 12 Chicago Journal of International Law 755 (Winter 2012) China's intricate web of Indigenous Innovation policies affords preferences in government procurement to certain high-technology products whose intellectual property is owned or registered in China. While the the policies were intended to strengthen China's national economy, they have been heavily criticized, notably by the US and the EU, as a... 2012
M. Brent Leonhard Closing a Gap in Indian Country Justice: Oliphant, Lara, and Doj's Proposed Fix 28 Harvard Journal on Racial & Ethnic Justice 117 (Spring 2012) I. Introduction. 118 II. A Problem That Desperately Needs Fixing. 120 III. Parsing Oliphant. 122 a. The Facts. 123 b. The Appellate Court Decision and Argument of the Parties before the United States Supreme Court. 124 c. The Majority Opinion. 126 i. Footnote six. 126 ii. The new phenomenon /tribes had no laws assertion. 127 iii. Footnote... 2012
  Closing Plenary--indigenous Peoples and International Law: a Conversation with Un Special Rapporteur James Anaya and Inter-american Commission Rapporteur Dinah Shelton 106 American Society of International Law Proceedings 525 (March 28-31, 2012) This panel was convened at 11:00 a.m., Saturday, March 31, by its moderator, N. Bruce Duthu of the Native American Studies Program, Dartmouth College, who introduced the speakers: James Anaya, UN Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples; and Dinah Shelton, Rapporteur on the Rights of... 2012
Clare Boronow Closing the Accountability Gap for Indian Tribes: Balancing the Right to Self-determination with the Right to a Remedy 98 Virginia Law Review 1373 (October, 2012) WITH the adoption of the United Nations (UN) Declaration on the Rights of Indigenous Peoples by the General Assembly in 2007 and the subsequent endorsement of the four holdout States--Australia, New Zealand, Canada, and the United States--there is nearly universal acknowledgement of the fundamental rights of indigenous peoples. The Declaration is... 2012
Mark Harris Cluster Introduction: Indigenous Populations and Injustice's Global Borders 42 California Western International Law Journal 437 (Spring 2012) In this twenty-first century, the violence and injustices first visited upon Indigenous Peoples some six centuries ago continue to be played out globally. Across the Americas, to the settler colonies of the British Commonwealth, and to the European outposts in Africa and the Middle East, we see a consistent theme of dispossession, forced labour,... 2012
Jide James-Eluyode Collective Rights to Lands and Resources: Exploring the Comparative Natural Resource Revenue Allocation Model of Native American Tribes and Indigenous African Tribes 29 Arizona Journal of International and Comparative Law 177 (Spring, 2012) One of the most important and conspicuous developments in the sphere of contemporary international human rights can be attributed to the recognition of indigenous rights as a distinct regime of collective human rights of peoples and of indigenous peoples as special subjects of international concern. Despite these landmark developments, the rights... 2012
Rishi R. Gupta Compulsory Licensing in Trips: Chinese and Indian Comparative Advantage in the Manufacture and Exportation of Green Technologies 12 Sustainable Development Law & Policy 21 (Spring, 2012) Challengers to the United States' global influence, such as Brazil, China, and India, have criticized heavy polluters like the United States and the United Kingdom for significantly contributing to the world's total carbon emissions but failing to share its green technologies with the rest of the world. Utilizing Rio+20 to redefine Article 31(b) of... 2012
  Concluding Discussion of Guatemala's Report, Human Rights Experts Pose Questions on Human Rights Defenders, Addressing Conflict's Aftermath, Indigenous Rights 18 Law & Business Review of the Americas 125 (Winter 2012) Following Two-Day Consideration, Delegation Says Mindset Truly Changed; State of Denial Replaced by Genuine Desire to Build Society That Protects Human Rights AS it concluded discussion on Guatemala's third periodic report today, the Human Rights Committee commended the country for putting in place legislative measures to improve its compliance... 2012
Stuart Schüssel Copyright Protection's Challenges and Alaska Natives' Cultural Property 29 Alaska Law Review 313 (December, 2012) There is something immediately distinctive about the Northwest Coast Barbie. While she shares the same impossible physique and high heels common to Mattel's iconic product line, the Northwest Coast Barbie sports a dark complexion, and her black hair falls onto an earthy, patterned Chilkat blanket. The box identifies this particular Barbie as a... 2012
Blake F. Quackenbush Cross-border Insolvency & the Eligibility of Indian Tribes to Use Chapter 15 of the Bankruptcy Code 29 Thomas M. Cooley Law Review 61 (2012) Introduction. 62 I. Are Indian Tribes Eligible for Relief Under the Bankruptcy Code?. 62 A. The Majority of Bankruptcy Scholars Interpret the Bankruptcy Code in a Way that Renders Indian Tribes Ineligible for Relief Under Chapters 7 and 11. 63 B. Bankruptcy Courts Are Beginning to Interpret the Bankruptcy Code in a Manner that Renders Indian Tribes... 2012
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