AuthorTitleCitationSummaryYear
Jacob T. Levy Three Perversities of Indian Law 12 Texas Review of Law and Politics 329 (Spring 2008) I. Introduction. 330 II. The Setting. 332 A. Indian Law and Indian Country. 332 B. Self-Determination and Dependence. 336 III. Criminal Jurisdiction. 342 IV. Civil Jurisdiction. 346 A. The Nonjurisdiction Rule and the Second Montana Exception. 349 B. The First Montana Exception. 355 C. An Objection. 355 V. Economic Policy. 361 VI. Conclusion. 366 2008
Stephen J. Powell , Paola A. Chavarro Toward a Vibrant Peruvian Middle Class: Effects of the Peru-united States Free Trade Agreement on Labor Rights, Biodiversity, and Indigenous Populations 20 Florida Journal of International Law S93 (2008) The International Trade Law Program at the University of Florida has explored in some depth the general impact of trade rules on human rights. Our premise is straightforward. Trade and human rights are inextricably linked because trade rules weaken the ability of governments to promote sustainable development, to alleviate the widening gap between... 2008
Patrick M. Garry , Candice J. Spurlin , Jennifer L. Keating , Derek A. Nelsen Tribal Incorporation of First Amendment Norms: a Case Study of the Indian Tribes of South Dakota 53 South Dakota Law Review 335 (2008) As American culture becomes more individualistic, social and legal opposition has arisen regarding expansive judicial interpretations of First Amendment freedoms. According to this opposition, the courts have interpreted such freedoms in an almost exclusively individualistic light, with little regard for community interests and values. This debate... 2008
Cruz Reynoso , William C. Kidder Tribal Membership and State Law Affirmative Action Bans: Can Membership in a Federally Recognized American Indian Tribe Be a plus Factor in Admissions at Public Universities in California and Washington? 27 Chicana/o-Latina/o Law Review 29 (2008) The group at the statistical bottom of all the scales thought to measure lack of opportunity is American Indians. A line of viable Supreme Court authority holds that equal protection of the law does not require strict scrutiny of laws singling out Indians for advantage or disadvantage, when Indians is understood to mean members of federally... 2008
Cruz Reynoso , William C. Kidder TRIBAL MEMBERSHIP AND STATE LAW AFFIRMATIVE ACTION BANS: CAN MEMBERSHIP IN A FEDERALLY RECOGNIZED AMERICAN INDIAN TRIBE BE A PLUS FACTOR IN ADMISSIONS AT PUBLIC UNIVERSITIES IN CALIFORNIA AND WASHINGTON? 27 Chicana/o-Latina/o Law Review 29 (2008) The group at the statistical bottom of all the scales thought to measure lack of opportunity is American Indians. A line of viable Supreme Court authority holds that equal protection of the law does not require strict scrutiny of laws singling out Indians for advantage or disadvantage, when Indians is understood to mean members of federally... 2008
Angelique A. EagleWoman , (Wambdi A. WasteWin) Tribal Nation Economics: Rebuilding Commercial Prosperity in Spite of U.s. Trade Restraints--recommendations for Economic Revitalization in Indian Country 44 Tulsa Law Review 383 (Winter 2008) Tribal commerce created the current highways that stretch from coast-to-coast in North America today. The roads that are traveled by semi-trucks full of cargo, grocery produce, and all manner of commercial goods are on top of the ancient trade routes Natives have traveled for centuries. Unfortunately, the history and sophistication of Native... 2008
Alex Tallchief Skibine TRIBAL SOVEREIGN INTERESTS BEYOND THE RESERVATION BORDERS 12 Lewis & Clark Law Review 1003 (Winter 2008) After describing how, from a global perspective, traditional concepts of state sovereignty have moved away from being uniquely tied to exclusive control of territories, this Article shows how the United States concept of tribal sovereignty is also no longer tied to territorial sovereignty. This is evident from the fact that, mostly through Supreme... 2008
Matthew Duchesne TRIBAL TRUSTEES AND THE USE OF RECOVERED NATURAL RESOURCE DAMAGES UNDER CERCLA 48 Natural Resources Journal 353 (Spring, 2008) The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or the Act) authorizes certain federal, state, and tribal officials to act as trustees on behalf of the public and recover damages for injuries to publicly owned, managed, or regulated natural resources. The Act explicitly limits the uses to which federal and state... 2008
Angelique A. EagleWoman , Wambdi A. Wastewin Tribal Values of Taxation Within the Tribalist Economic Theory 18-FALL Kansas Journal of Law & Public Policy Pol'y 1 (Fall 2008) Tribal Nations in mid-North America currently exercise their inherent rights as self-governing sovereign peoples by imposing taxes within tribal territories. Taxation is one of the powers of government that flows from sovereign status. The success of tribal taxation has been curtailed by intrusion of the United States federal government and its... 2008
Angelique A. EagleWoman , Wambdi A. Wastewin TRIBAL VALUES OF TAXATION WITHIN THE TRIBALIST ECONOMIC THEORY 18-FALL Kansas Journal of Law & Public Policy 1 (Fall 2008) Tribal Nations in mid-North America currently exercise their inherent rights as self-governing sovereign peoples by imposing taxes within tribal territories. Taxation is one of the powers of government that flows from sovereign status. The success of tribal taxation has been curtailed by intrusion of the United States federal government and its... 2008
Mary Christina Wood , Zachary Welcker Tribes as Trustees Again (Part I): the Emerging Tribal Role in the Conservation Trust Movement 32 Harvard Environmental Law Review 373 (2008) History suggests that if mankind is to survive, the next five hundred years must be rooted in the pre-Columbian ethic of the Native American. The second American quincentenary belongs to the Indian. The continuation of the past, the conqueror's exploitation of the earth, can mean only one thing. No one, Indian or non-Indian, will survive. --Rennard... 2008
Mary Christina Wood , Matthew O'Brien Tribes as Trustees Again (Part Ii): Evaluating Four Models of Tribal Participation in the Conservation Trust Movement 27 Stanford Environmental Law Journal 477 (June, 2008) I. Introduction. 479 II. The Mechanics of Private Conservation. 481 A. Fee Ownership Versus Conservation Easement. 481 B. Funding Concerns and Financial Incentives. 482 1. Financial Arrangements of Transfer. 482 2. Costs Associated with A Conservation Transaction. 483 3. Tax Incentives For Private Conservation. 484 C. The Holder Issue. 486 D. The... 2008
Mary Christina Wood , Matthew O'Brien TRIBES AS TRUSTEES AGAIN (PART II): EVALUATING FOUR MODELS OF TRIBAL PARTICIPATION IN THE CONSERVATION TRUST MOVEMENT 27 Stanford Environmental Law Journal 477 (June, 2008) I. Introduction. 479 II. The Mechanics of Private Conservation. 481 A. Fee Ownership Versus Conservation Easement. 481 B. Funding Concerns and Financial Incentives. 482 1. Financial Arrangements of Transfer. 482 2. Costs Associated with A Conservation Transaction. 483 3. Tax Incentives For Private Conservation. 484 C. The Holder Issue. 486 D. The... 2008
Carlo Osi Understanding Indigenous Dispute Resolution Processes and Western Alternative Dispute Resolution Cultivating Culturally Appropriate Methods in Lieu of Litigation 10 Cardozo Journal of Conflict Resolution 163 (Fall 2008) 1. Introduction. 164 1.1 Focus of the Paper. 167 2. Indigenous Communities: Weak, Isolated, Vulnerable. 169 2.1 Right to Participate. 175 2.2 Adherence to Indigenously Appropriate Dispute Resolution. 177 3. Placing the International Problem in Context. 178 3.1 Cultural Appropriation and Indigeneity. 178 3.2 TRIPS and CBD. 180 3.3 Patents and... 2008
Kathryn Nalani Setsuko Hong Understanding Native Hawaiian Rights: Mistakes and Consequences of Rice V. Cayetano 15 Asian American Law Journal L.J. 9 (May, 2008) This paper comprehensively reviews the Supreme Court case Rice v. Cayetano and its implications for Native Hawaiian legal rights. The Rice opinion, issued in 2000, continues to affect the Native Hawaiian community today. The issue of Native Hawaiian legal rights remains controversial, as demonstrated by recent suits challenging programs that... 2008
Benjamin J. Cordiano UNSPOKEN ASSUMPTIONS: EXAMINING TRIBAL JURISDICTION OVER NONMEMBERS NEARLY TWO DECADES AFTER DURO V. REINA 41 Connecticut Law Review 265 (November, 2008) In a series of decisions beginning in 1978 with Oliphant v. Suquamish Indian Tribe, the Supreme Court has stripped Indian tribes of the ability to prosecute all criminal offenders within the borders of their territory. A decade after holding that non-Indians were not subject to the criminal jurisdiction of Indian tribes, the Supreme Court, in Duro... 2008
Lillian Aponte Miranda Uploading the Local: Assessing the Contemporary Relationship Between Indigenous Peoples' Land Tenure Systems and International Human Rights Law Regarding the Allocation of Traditional Lands and Resources in Latin America 10 Oregon Review of International Law 419 (2008) I. Indigenous Peoples as Subjects of International Law. 423 II. Indigenous Peoples' Contemporary Claims to Lands and Resources Under Human Rights Law. 428 III. Indigenous Peoples' Litigation Regarding Their Traditional Lands and Resources Before the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. 433 IV. The... 2008
Gavin Clarkson Wall Street Indians: Information Asymmetry and Barriers to Tribal Capital Market Access 12 Lewis & Clark Law Review 943 (Winter 2008) Wall Street in New York City may be considered the financial center of the world, but the original wall on Wall Street was built to keep the Indians out. Unfortunately Wall Street has remained true to its origins and has excluded Indian tribes from equal participation in the capital markets, although Wall Street has had some help in this regard.... 2008
Gabriel Martinez , L. Lisa Sandoval Winner, Best Appellate Brief in the 2007 Native American Law Student Association Moot Court Competition 32 American Indian Law Review 293 (2007-2008) 1. The land claim issues before the Court are: a. Whether the Makota Nation have recognized title to land they have lived on for centuries in the Eagle Wing area of the Yellowstone National Park, and b. Whether the Court should give weight, and to what extent it should do so, to customary international law, in particular the Organization of... 2008
Angela R. Riley (TRIBAL) SOVEREIGNTY AND ILLIBERALISM 95 California Law Review 799 (June, 2007) Liberalism struggles with an ancient paradox. That is, it must navigate the sometimes treacherous course between individual autonomy and pluralism's accommodation. In this Article, I argue that this philosophical tension has manifested in very concrete intrusions on American Indians' tribal sovereignty. On the one hand, tribal sovereignty guards... 2007
William F. Bacon , Shoshone Bannock Tribe 20 Questions about Indian Law 50-MAY Advocate 17 (May, 2007) The practice of American Indian law invites many questions from both lawyers and non-lawyers alike. This article lists some of the questions asked most frequently over the years, together with brief answers to those questions. Generally, yes. There are exceptions, however, where (a) the federal law touches upon the exclusive right of... 2007
William P. Zuger A BAEDEKER TO THE TRIBAL COURT 83 North Dakota Law Review 55 (2007) When I started work as a temporary judge at the Standing Rock Sioux Indian Reservation, I had set foot on the reservation perhaps a half dozen times, only one of which, my employment interview with Standing Rock Tribal Chairman Ron His Horse Is Thunder four days earlier, was other than a visit to the Prairie Knights Casino. Since law school, I had... 2007
Patrice H. Kunesh A Call for an Assessment of the Welfare of Indian Children in South Dakota 52 South Dakota Law Review 247 (2007) Give me the strength to walk the soft earth, A relative to all that is! Give me the eyes to see and the strength to understand. - Black Elk The initial impetus for this Article began in the summer of 2005 when I moved to South Dakota to begin an appointment at the University of South Dakota School of Law. With teaching responsibilities in the areas... 2007
Scott A. Taylor A Judicial Framework for Applying Supreme Court Jurisprudence to the State Income Taxation of Indian Traders 2007 Michigan State Law Review 841 (Winter 2007) C1-3Table of Contents L1-2Introduction . L3842 I. In the Beginning There Was the Fur and Pelt Trade. 848 A. British and Colonial Regulation. 848 B. Regulation under the Articles of Confederation and the Constitution. 850 II. Important Judicial Decisions before Warren Trading Post. 853 III. Warren Trading Post and Subsequent Cases. 859 A. Warren... 2007
Glenn C. Reynolds A Native American Land Ethic 21-WTR Natural Resources & Environment 16 (Winter, 2007) Native Americans vastly enrich America's environmental legacy and evolving cultural ecology. This contribution is revealed in a successful effort to stop a proposal to mine sulfide zinc and copper ore in northeastern Wisconsin in the midst of some of the purest water on earth. After a twenty-eight-year struggle, one of the smallest Native American... 2007
Akhil Reed Amar A TRIBUTE TO LARRY TRIBE 42 Tulsa Law Review 801 (Summer 2007) You don't need many heroes if you choose carefully. -- John Hart Ely, 1980 Today I would like to share a few thoughts about the extraordinary career of Larry Tribe. I want to identify four particular elements of that extraordinary career, and on each issue I will make particular reference to his treatise, American Constitutional Law. The four... 2007
Robert T. Anderson Alaska Native Rights, Statehood, and Unfinished Business 43 Tulsa Law Review 17 (Fall 2007) Alaska Native aboriginal rights to land and associated resources were never dealt with in a comprehensive fashion until 1971, when Congress passed the Alaska Native Lands Claims Settlement Act (ANILCA). Although general principles of federal Indian law provided strong support for the proposition that Alaska's Native people held aboriginal title to... 2007
Robert Odawi Porter American Indians and the New Termination Era 16 Cornell Journal of Law & Public Policy 473 (Summer 2007) INTRODUCTION. 473 I. THE TRENDS. 477 II. THE OPPORTUNITIES. 484 III. ARE WE BEING SET UP?. 487 CONCLUSION. 492 2007
Meredith Mullins American-indian Law - Taxation - Michigan General Property Tax Act Is Not Valid Against Indian Reservation Land Alloted under the 1854 Treaty Because Congress Did Not Expressly Authorize It. Keweenaw Bay Indian Community V. Naftaly, 452 F.3d 514 (6th Cir. 85 University of Detroit Mercy Law Review 57 (Fall 2007) In Keweenaw Bay Indian Community v. Naftaly, the Sixth Circuit granted leave to appeal to determine whether application of the Michigan General Property Tax Act (hereinafter Act) would violate the terms of the 1854 Treaty. Plaintiff, a federally recognized American-Indian tribe and the successor in interest of the Chippewa Indian bands, filed a... 2007
Tracy Ulltveit-Moe Amnesty International and Indigenous Rights: Congruence or Conflict? 31 American Indian Law Review 717 (2006-2007) Amnesty International (AI) perceives itself as the natural ally of the oppressed. Where there is injustice, inequality and discrimination, AI's inclination is to consider how it might help the victims, pressing real or potential perpetrators of abuses to respect their rights. But could indigenous rights sometimes conflict with other rights AI... 2007
Shawkat Alam An Examination of the International Environmental Law Governing the Proposed Indian River-linking Project and an Appraisal of its Ecological and Socio-economic Implications for Lower Riparian Countries 19 Georgetown International Environmental Law Review 209 (Winter, 2007) C1-3Contents I. Introduction. 210 II. The Indian River-Linking Project and Its Likely Impacts. 211 A. Project Description. 211 B. Likely Environmental and Socio-Economic Impacts of the Project on Bangladesh. 213 III. International Law Governing International Rivers. 217 A. Principles of International Law and General International Environmental... 2007
Christine Basic (Fall 2003) An Overview of the Indian Child Welfare Act of 1978 16 Journal of Contemporary Legal Issues 345 (2007) Here I walk the road of beauty with my little one as we wear beautiful, beaded moccasins. Let the sunrays be on us, among the carpeted colors of flowers. My child and I will be recognized by our little tiny friends--animals, birds, and butterflies. My child and I will touch the clear water of coolness in the stream as we live. Ha ho ya tahey. My... 2007
Rob Roy Smith At a Complex Crossroads: Animal Law in Indian Country 14 Animal Law 109 (2007) Animals play an especially important role in Indian history and culture. The value of animals to Indian tribes is reflected in every aspect of their culture, from song and dance to land use and treaty terms. Tribes today are still dependent on fish and wildlife for ceremonies and everyday living. Tribes have translated their value for animals into... 2007
Keith E. Sealing Attack of the Balloon People: How America's Food Culture and Agricultural Policies Threaten the Food Security of the Poor, Farmers, and Indigenous Peoples of the World 40 Vanderbilt Journal of Transnational Law 1015 (October, 2007) I. Introduction. 1016 II. Domestic Problems. 1022 A. How (Much and What) America Eats. 1022 1. The Balloon People. 1022 2. A Brief History of (Dinner) Time. 1024 B. Gone is the Family Farm: How America Raises and Grows Its Food. 1025 C. The Farm Lobby: How America Regulates Agriculture. 1026 D. Free Cheese: How America Subsidizes Agriculture. 1027... 2007
Patrice H. Kunesh BANISHMENT AS CULTURAL JUSTICE IN CONTEMPORARY TRIBAL LEGAL SYSTEMS 37 New Mexico Law Review 85 (Winter, 2007) One of our chiefs killed a man. The people talked against him. We will take him out of his place, they said. That is what they wanted to do. But the Indian law stopped it. Even so, the chief and his wife and children were banished from the camp.But he was still chief, though all by himself. One day his wife came poking her way into the main camp... 2007
Kathleen A. Ward Before and after the White Man: Indian Women, Property, Progress, and Power 6 Connecticut Public Interest Law Journal 245 (Spring/Summer, 2007) Native America has been, and in many ways still is, more diverse than the entire continent of Europe. While all Indian tribes have an underlying consciousness and world view, each tribe has its own language, religion, customs, governance structure, judicial system, and history. Thus, when writing an article about the Native American experience, it... 2007
Hon. Troy A. Eid Beyond Oliphant: Strengthening Criminal Justice in Indian Country 54-APR Federal Lawyer 40 (March/April, 2007) Violent crime continues to take a massive toll on Native Americansto the point that more than one-third of Indian women will be raped during their lifetimes. Many Indian reservations suffer from a chronic lack of basic criminal justice services. Strengthening public safety means reassessing decisions by the U.S. Supreme Court that limit tribes... 2007
Patrice H. Kunesh Borders Beyond Borders -- Protecting Essential Tribal Relations off Reservation under the Indian Child Welfare Act 42 New England Law Review 15 (Fall 2007) The year 2008 marks the thirtieth anniversary of the enactment of the Indian Child Welfare Act (ICWA), one of the most dynamic pieces of legislation in the field of federal Indian affairs, which irrevocably changed the traditional jurisdictional prerogatives of states in child custody matters. ICWA's jurisdictional scheme vests exclusive... 2007
Patrice H. Kunesh BORDERS BEYOND BORDERS -- PROTECTING ESSENTIAL TRIBAL RELATIONS OFF RESERVATION UNDER THE INDIAN CHILD WELFARE ACT 42 New England Law Review 15 (Fall 2007) Abstract: The year 2008 marks the thirtieth anniversary of the enactment of the Indian Child Welfare Act (ICWA), one of the most dynamic pieces of legislation in the field of federal Indian affairs, which irrevocably changed the traditional jurisdictional prerogatives of states in child custody matters. ICWA's jurisdictional scheme vests exclusive... 2007
Matthew L. M. Fletcher Bringing Balance to Indian Gaming 44 Harvard Journal on Legislation 39 (Winter, 2007) This Article argues that the national debate on Indian gaming wrongly focuses on the issue of off-reservation gaming and other symptoms of the current imbalance in Indian gaming law, rather than addressing the fundamental reason for the imbalance. The Article first describes the history of Indian gaming law that led to Congress's enactment of the... 2007
Viola Sanchez Carryover Storage of Indian Prior and Paramount Water in El Vado 47 Natural Resources Journal 697 (Summer, 2007) Storage and release for the Six Middle Rio Grande Pueblos has taken place at El Vado Reservoir since the reservoir was first used in 1935. No distinction was made between the lands being served and their appurtenant water rights in storage and delivery in the early years of El Vado operation. El Vado storage and release for Indian lands became an... 2007
Kathryn R.L. Rand Caught in the Middle: How State Politics, State Law, and State Courts Constrain Tribal Influence over Indian Gaming 90 Marquette Law Review 971 (Summer 2007) A basic tenet of federal Indian law is that, as sovereign nations, tribes ordinarily are not subject to the strictures of state law. In its 1987 landmark decision, California v. Cabazon Band of Mission Indians, the U.S. Supreme Court applied that principle to hold that states could not regulate Indian gaming. On the heels of the Court's decision,... 2007
Kathryn R.L. Rand CAUGHT IN THE MIDDLE: HOW STATE POLITICS, STATE LAW, AND STATE COURTS CONSTRAIN TRIBAL INFLUENCE OVER INDIAN GAMING 90 Marquette Law Review 971 (Summer 2007) A basic tenet of federal Indian law is that, as sovereign nations, tribes ordinarily are not subject to the strictures of state law. In its 1987 landmark decision, California v. Cabazon Band of Mission Indians, the U.S. Supreme Court applied that principle to hold that states could not regulate Indian gaming. On the heels of the Court's decision,... 2007
Austen L. Parrish Changing Territoriality, Fading Sovereignty, and the Development of Indigenous Rights 31 American Indian Law Review 291 (2006-2007) For much of the nineteenth and twentieth centuries, the international community resisted the notion of indigenous rights. In recent years, however, thishas changed. The emergence of indigenous rights in international law finally may be upon us. At the very least, the language of both international instruments and certain court decisions has... 2007
Michael Matthews City of Sherrill V. Oneida Indian Nation: Balancing the Correction of Historical Wrongs with the Convenience of Ignoring Them 32 Oklahoma City University Law Review 169 (Spring 2007) The Supreme Court's decision in City of Sherrill v. Oneida Indian Nation has dramatically altered the legal landscape against which [courts] consider [Indian land] claims. Such was the comment from the Second Circuit as it relied on Oneida to reverse a judgment of $248 million previously awarded the Cayuga Indian Nation. In Oneida, the United... 2007
Russell A. Miller Collective Discursive Democracy as the Indigenous Right to Self-determination 31 American Indian Law Review 341 (2006-2007) There are radically conflicting perspectives on indigenous peoples' right to self-determination in international law. On one hand, indigenous advocates regard self-determination as a (if not the) fundamental and non-negotiable element of the international law regime concerned with indigenous rights. On the other hand, many states, including some of... 2007
Mary Ann King Co-management or Contracting? Agreements Between Native American Tribes and the U.s. National Park Service Pursuant to the 1994 Tribal Self-governance Act 31 Harvard Environmental Law Review 475 (2007) The 1994 Tribal Self-Governance Act (TSGA) provides a mechanism for transferring authority over federal programs, including the management of federal land, to Indian tribes. The TSGA permits tribes to petition bureaus within the Department of the Interior (DOI) to manage federal programs that are of special geographical, historical, or... 2007
Megan Lynn Johnson Coming Full Circle: the Use of Sentencing Circles as Federal Statutory Sentencing Reform for Native American Offenders 29 Thomas Jefferson Law Review 265 (Spring 2007) In the United States, prosecuting Native American offenders with punitive criminal sentences is inappropriate because tribal sentences emphasize restorative justice instead of harsh punishments. High incarceration and recidivism rates result from applying rigid federal sentencing rules to American Indian cases, because the underlying problem is... 2007
Jake J. Allen Conducting Embryonic Stem Cell Research on Native Lands in Michigan 11 Michigan State University Journal of Medicine & Law 395 (Summer, 2007) C1-3Table of Contents Introduction. 396 I. The Science and Importance of Stem Cell Research. 398 A. What Is a Stem Cell?. 398 B. How Are Stem Cells Obtained?. 399 C. Why Scientists Are Not Satisfied With Use of the Existing Federally Funded Embryonic Stem Cell Lines. 400 D. Why Scientists Are Not Satisfied with Just the Use of Adult and Cord Stem... 2007
Hon. Gaylen L. Box , Magistrate Judge Sixth Judicial District Crow Dog: Tribal Sovereignty & Criminal Jurisdiction in Indian Country 50-MAY Advocate 13 (May, 2007) Crow Dog really started something on that hot dusty August afternoon in the Dakota Territory in 1881. The Sioux Nation had been fractured by the United States and its members scattered among various reservations. Just outside the Rosebud Indian Agency on the Great Sioux Reservation, Crow Dog shot and killed Spotted Tail, a Brule Sioux chief.... 2007
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