AuthorTitleCitationSummaryYear
Rob Roy Smith , Morisset, Schlosser, Jozwiak & McGaw Taxing Times 49-FEB Advocate 20 (February, 2006) In the January 2005 issue of The Advocate, I wrote an article about shifts in judicial thinking regarding Indian tax law. In that article I encouraged Idaho practitioners to follow a number of tax law cases with potentially major ramifications for Indian tribes and the state of Idaho. One such case was a decision by the Tenth Circuit Court of... 2006
G. William Rice Teaching Decolonization: Reacquisition of Indian Lands Within and Without the Box--an Essay 82 North Dakota Law Review 811 (2006) Article 26 of the Draft Declaration on the Rights of Indigenous Peoples provides: 1. [Indian] peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2. [Indian] peoples have the right to own, use, develop and control the lands, territories and resources that they... 2006
Alex Tallchief Skibine Teaching Indian Law in an Anti-tribal Era 82 North Dakota Law Review 777 (2006) One year, on the last day of my federal Indian law class, one student asked me whether in answering the exam, I wanted her to answer according to what the law was or what I thought the law should be. Her question reminded me of Robert Laurence's article criticizing some scholarship for being perhaps a little out of touch with reality. Was this... 2006
Alex Tallchief Skibine TEACHING INDIAN LAW IN AN ANTI-TRIBAL ERA 82 North Dakota Law Review 777 (2006) One year, on the last day of my federal Indian law class, one student asked me whether in answering the exam, I wanted her to answer according to what the law was or what I thought the law should be. Her question reminded me of Robert Laurence's article criticizing some scholarship for being perhaps a little out of touch with reality. Was this... 2006
Cheyañna L. Jaffke The "Existing Indian Family" Exception to the Indian Child Welfare Act: the States' Attempt to Slaughter Tribal Interests in Indian Children 66 Louisiana Law Review 733 (Spring, 2006) Pretend for a moment that War of the Worlds is not science fiction, but rather reality. Instead of the Martians dying, they actually live and govern humans. At first, the policy of the Martian government toward humans is assimilation. They want all humans to think and act like Martians. Therefore, they passed rules and regulations to further that... 2006
Cheyañna L. Jaffke THE "EXISTING INDIAN FAMILY" EXCEPTION TO THE INDIAN CHILD WELFARE ACT: THE STATES' ATTEMPT TO SLAUGHTER TRIBAL INTERESTS IN INDIAN CHILDREN 66 Louisiana Law Review 733 (Spring, 2006) Pretend for a moment that War of the Worlds is not science fiction, but rather reality. Instead of the Martians dying, they actually live and govern humans. At first, the policy of the Martian government toward humans is assimilation. They want all humans to think and act like Martians. Therefore, they passed rules and regulations to further that... 2006
Kelly Gaines Stoner , Casey Ross-Petherick The "Who and Where" Means the State Takes All: State Taxation Crosses into Indian Country 30 American Indian Law Review 385 (2005-2006) The ability to tax is a core attribute of tribal sovereignty. Taxation in Indian Country is one of the most complex areas of Indian Law. Not only must tribes work within the framework established by federal statutes and the United States Supreme Court, but tribes must also brace for direct attacks on tribal sovereignty by state legislatures. State... 2006
Megan J. Renfrew The 100% Federal Medical Assistance Percentage: a Tool for Increasing Federal Funding for Health Care for American Indians and Alaska Natives 40 Columbia Journal of Law and Social Problems 173 (Winter 2006) The Indian Health Care Improvement Act requires the Centers for Medicare and Medicaid Services (CMS) to reimburse states for the cost of services provided to Medicaid-enrolled American Indians and Alaska Natives (AIAN) receiving care through the Indian Health Service (IHS). The Federal Medical Assistance Percentage (FMAP), the rate at which CMS... 2006
Kristina L. McCulley The American Indian Probate Reform Act of 2004: the Death of Fractionation or Individual Native American Property Interests and Tribal Customs? 30 American Indian Law Review 401 (2005-2006) The public outcry protesting the Supreme Court's recent expansion of Fifth Amendment takings jurisprudence in Kelo v. City of New London reflects the citizenry's devotion to preserving the right of private property as an important American value. Although the ramifications of Kelo surprised most of the nation, Native Americans have long known the... 2006
Jason C. Nelson The Application of the International Law of State Succession to the United States: a Reassessment of the Treaty Between the Republic of Texas and the Cherokee Indians 17 Duke Journal of Comparative & International Law L. 1 (Fall 2006) Perhaps no event in the modern era has been more profoundly consequential than the European discovery of the Americas. . . . Over a succession of generations, Europeans devised rules intended to justify the dispossession and subjugation of the native peoples . . . . Of these rules, the most fundamental were those governing the ownership of land.... 2006
Douglas Nash , Cecelia Burke , Director, Institute for Indian Estate Planning and Probate, Deputy Director, Institute for Indian Estate Planning and Probate The Changing Landscape of Indian Estate Planning and Probate 49-FEB Advocate 12 (February, 2006) Without a historical perspective, Indian law can be a mystifying collection of inconsistencies and anachronisms. Felix Cohen Seventy-one years ago, Felix Cohen, a prominent scholar and writer in the field of Indian law, asserted that an historical perspective is necessary for a clear view of the field of Indian law, which otherwise would seem... 2006
Douglas R. Nash , Cecelia E. Burke The Changing Landscape of Indian Estate Planning and Probate: the American Indian Probate Reform Act 5 Seattle Journal for Social Justice 121 (Fall/Winter, 2006) Probate law typically is not a social justice issue. State probate laws are designed to effectuate the last wishes of people who have died without the benefit of a last will and testament. The policy behind state probate laws is to distribute property in a manner the majority of people would find acceptable, taking care to protect the needs and... 2006
Roberto Iraola The Civil and Criminal Penalty Provisions of the Indian Arts and Crafts Act of 1990 36 Cumberland Law Review 293 (2005-2006) On November 29, 1990, President George H.W. Bush signed the Indian Arts and Crafts Act (IACA) into law. Principally aimed at protecting Indian art consumers and artists from imitations entering the market from abroad, the IACA builds upon legislation enacted in 1935 that created the Indian Arts and Crafts Board (the Board). The new legislation,... 2006
Justice Modibo Ocran The Clash of Legal Cultures: the Treatment of Indigenous Law in Colonial and Post-colonial Africa 39 Akron Law Review 465 (2006) The historic Berlin Conference on Africa in 1885 is often credited with the official beginning of colonialism in Africa. However, this Conference, held among the principal colonial European powers (Germany, France, Britain, Belgium, and Portugal), essentially marked the agreement among those powers to define territorial areas of influence in... 2006
Renee Ann Cramer The Common Sense of Anti-indian Racism: Reactions to Mashantucket Pequot Success in Gaming and Acknowledgment 31 Law and Social Inquiry 313 (Spring, 2006) Anti-Indian racism, as typified by anticasino backlash, is a part of the common sense of race relations in the United States, which increasingly impacts federal administrative procedures used to acknowledge the existence of tribal status. Using ethnographic and archival research, this article shows that the backlash over Mashantucket Pequot... 2006
Mason D. Morisset The Cushman Dam Case and Indian Treaty Rights: Skokomish Indian Tribe V. United States, et Al. 27 Public Land & Resources Law Review 23 (2006) I. INTRODUCTION 23 II. THE COURT BARS MONETARY RELIEF DESPITE CLEAR DAMAGE TO TREATY PROTECTED RIGHTS 25 III. INDIVIDUAL TRIBAL MEMBERS HAVE A CAUSE OF ACTION BUT ARE BARRED MONETARY RELIEF UNDER42 U.S.C. § 1983 27 IV. THE ORIGINAL PANEL MAJORITY OPINION RELEGATES FISHING TO A SECONDARY PURPOSE OF THE RESERVATION WITHOUT ATTENDANT RESERVED WATER... 2006
Andrew Erueti The Demarcation of Indigenous Peoples' Traditional Lands: Comparing Domestic Principles of Demarcation with Emerging Principles of International Law 23 Arizona Journal of International & Comparative Law 543 (Fall, 2006) One of the most pressing issues for indigenous peoples around the globe is the state recognition and demarcation of the traditional land rights of indigenous peoples: In terms of frequency and scope of complaints, the greatest single problem today for indigenous peoples is the failure of States to demarcate indigenous lands. Demarcation of lands is... 2006
Brad M. Gallagher The Disappearance of the Great American Indian Athlete 24-FALL Entertainment and Sports Lawyer Law. 1 (Fall, 2006) What do ice hockey, the overhand swimming stroke and basketball all have in common? Each has their roots in the American Indian culture. American Indians invented the roots of ten Olympic sports and many non-Olympic sports, such as lacrosse. According to Oren Lyons, Chief of Onondaga Nation to the Iroquois Confederacy, while the rest of the... 2006
Joshua L. Sohn The Double-edged Sword of Indian Gaming 42 Tulsa Law Review 139 (Fall, 2006) Indian gaming is a growing economic phenomenon that inevitably affects surrounding communities, state governments, and hundreds of Indian tribes around the United States. This comment contends that the effect of gaming on Indian tribes themselves is particularly complex and, to a large extent, contradictory. On the one hand, Indian gaming has... 2006
Elizabeth Ann Kronk The Emerging Problem of Methamphetamine: a Threat Signaling the Need to Reform Criminal Jurisdiction in Indian Country 82 North Dakota Law Review 1249 (2006) People say there is something in the air here. I say that something is methamphetamine It is in our air, water, soil; it is in our people and in our children. --Unknown Meth is easy to make. It is highly addictive. It is ruining too many lives across our country . . . --George W. Bush, President of the United States The business plan was simple: an... 2006
Justin Dargin The 'Indian Question' in Latin America: an Overview of the Legal and Social Position of Indigenous Peoples 63 Guild Practitioner 149 (Summer, 2006) The position of Indigenous peoples in Latin America has been perpetually fraught with struggles for self-determination from the founding of the Americas to the present. After World War II, the world over recognized the importance of strengthening individual rights to stop another Holocaust. However, soon after the Universal Declaration of Human... 2006
Bosire Maragia The Indigenous Sustainability Paradox and the Quest for Sustainability in Post-colonial Societies: Is Indigenous Knowledge All That Is Needed? 18 Georgetown International Environmental Law Review 197 (Winter, 2006) I. Introduction. 198 II. Indigenous Knowledge and the Indigenous Sustainability Claim. 202 A. What is Indigenous Knowledge?. 202 B. What is Sustainable Development?. 204 C. The Indigenous Sustainability Claim. 210 III. Indigenous Sustainability: Lessons from Post-Colonial Societies. 213 A. Challenges to Studying Nature-Society Relations in... 2006
Michael C. Blumm , David H. Becker , Joshua D. Smith The Mirage of Indian Reserved Water Rights and Western Streamflow Restoration in the Mccarran Amendment Era: a Promise Unfulfilled 36 Environmental Law 1157 (Fall 2006) Western state water law has been notorious for its failure to protect streamflows. One potential means of providing the missing balance in western water allocation has always been Indian water rights, which are federal rights reserved from state laws. These federal water rights usually have priority over state-granted rights because they... 2006
Charles Rennick The National Historic Preservation Act: San Carlos Apache Tribe V. United States and the Administrative Roadblock to Preserving Native American Culture 41 New England Law Review 67 (Fall 2006) The fires of mistrust between Native American Indian Tribes and the United States government have historically been fueled by threats to tribal sovereignty, changes in the trust relationship between federal and tribal governments, rampant corruption in governmental organizations, and bilateral communication breakdowns. Indian Tribes have engaged in... 2006
Ann R. Klee, Duane Mecham The Nez Perce Indian Water Right Settlement--federal Perspective 42 Idaho Law Review 595 (2006) On May 15, 2004, the Governor of Idaho, the Chairman of the Nez Perce Tribe, and the Secretary of the Interior gathered with others on the banks of the Boise River to announce the Nez Perce Water Rights Settlement. This settlement was reached after more than a decade of litigation and negotiation, including over five years of court-supervised... 2006
Alexander Hays V (Ti) The Nez Perce Water Rights Settlement and the Revolution in Indian Country 36 Environmental Law 869 (Summer 2006) In March 2005, the Nez Perce Tribal Executive Committee agreed to waive instream reserved water rights claims for salmon throughout the Snake River Basin in a settlement with the federal government, State of Idaho, and Idaho water users. These claims arose from treaties signed by the Nez Perce and federal government in 1855 and 1863, which... 2006
Jorge I. Euan-Avila , Manuel Chavez , Scott Whiteford The North American Free Trade Agreement (Nafta) and the Mayan Indigenous People of the Yucatan, Peninsula Fta's Within the Hemisphere and Their Environmental and Investment Chapters: Impact on Indigenous People 14 Michigan State Journal of International Law 291 (2006) According to trade liberalization proponents, free trade agreements (FTAs) are keys to long-term growth because they eliminate policies that restrict productive investments and technological change. In Mexico there are growing concerns about the social and economic impacts of the North American Free Trade Agreement (NAFTA) between Mexico, the... 2006
James M. Grijalva The Origins of Epa's Indian Program 15-WTR Kansas Journal of Law & Public Policy 191 (Winter 2006) The elders say when we don't know our history, we stand on false ground. -- Carol Jorgensen, Director, EPA American Indian Environmental Office For over thirty years, the Environmental Protection Agency (EPA) has recognized Indian tribes as local governments appropriately responsible for environmental management in Indian country. In the last... 2006
James A.r. Nafziger The Protection and Repatriation of Indigenous Cultural Heritage in the United States 14 Willamette Journal of International Law and Dispute Resolution 175 (2006) I. The Statutory Framework. 177 A. Federal Laws. 177 B. State Laws. 181 1. Protection of Designated Archaeological Sites. 181 2. General Burial Protection. 181 3. Specific Protection of Ancient or Historic Remains. 182 4. Repatriation of Human Remains and Cultural Objects. 182 II. The Origins of the NMAIA and NAGPRA. 183 III. NAGPRA. 187 A.... 2006
Lorie M. Graham The Racial Discourse of Federal Indian Law 42 Tulsa Law Review 103 (Fall, 2006) Robert A. Williams, Jr., Like a Loaded Weapon: The Rehnquist Court, Indian Rights and the Legal History of Racism in America (U. Minn. Press 2005). What if Brown v. Board of Education had continued to affirm the infamous legal fiction of Plessy v. Ferguson separate but equal or, even worse, reaffirmed the racially repulsive ideas of Dred Scott v.... 2006
The Right Honorable the Lord Scott of Foscote , Justice Randy J. Holland , Chilton Davis Varner The Role of "Extra-compensatory" Damages for Violations of Fundamental Human Rights in the United Kingdom & the United States 46 Virginia Journal of International Law 475 (Spring 2006) I. Abstract. 476 II. Sources of Fundamental Rights in the United Kingdom and the United States. 478 A. The United Kingdom. 478 B. The United States. 479 III. Extra-Compensatory Damages for Violations of Fundamental Rights in the United Kingdom. 480 A. Punitive Damages. 480 1. The Rookes and South West Water Services Restrictions on Punitive... 2006
Matthew L.M. Fletcher The Supreme Court and Federal Indian Policy 85 Nebraska Law Review 121 (2006) I. Introduction. 122 II. Federal Policy on Indian Affairs. 130 A. Sources of Federal Indian Policy. 135 B. Modern Congressional Statements of Federal Indian Policy. 140 1. Self-Governance. 141 2. Economic Development, Tax Authority, and Immunities. 144 3. Tribal Court Development. 147 4. Sovereign Immunity. 150 C. Modern Presidential Statements of... 2006
Joshua J. Tonra The Threat of Border Security on Indigenous Free Passage Rights in North America 34 Syracuse Journal of International Law and Commerce 221 (Fall 2006) Over the past few decades, border security has raised issues of paramount concern for the nations of North America due to problems associated with illegal immigration, drug trafficking, and the Global War on Terror. By 2001, the borders between the United States and its neighbors had become increasingly more open, a result in part of the North... 2006
James M. Grijalva The Tribal Sovereign as Citizen: Protecting Indian Country Health and Welfare Through Federal Environmental Citizen Suits 12 Michigan Journal of Race and Law 33 (Fall 2006) INTRODUCTION. 33 I. Tribal Governmental Roles in the Federal Environmental System. 34 II. Tribal Enforcement of Federal Environmental Laws Through Citizen Suits. 38 A. Tribes' Eligibility for Bringing Citizen Suits. 39 1. Tribes as Persons Under the Environmental Statutes. 39 2. Tribes' Standing to Sue Violators. 40 3. Other Procedural Issues. 41... 2006
Christine Zuni Cruz Toward a Pedagogy and Ethic of Law/lawyering for Indigenous Peoples 82 North Dakota Law Review 863 (2006) One of the most important aspects of clinical practice and clinical teaching is that it allows reflection. Students practice law in a manner meant to encourage reflection of that practice, to allow them to learn, and to consider their lawyering approach. Reflection is a noun that comes from a late Latin word meaning the act of bending back. The... 2006
Kevin C. Kennedy Trade and Foreign Investment in the Americas: the Impact on Indigenous Peoples and the Environment 14 Michigan State Journal of International Law 139 (2006) Within the Western Hemisphere the United States is a party to three free trade agreements: the North American Free Trade Agreement (NAFTA), the U.S.-Chile Free Trade Agreement, and the Dominican Republic-Central American Free Trade Agreement (DR-CAFTA). Three others in the process of negotiation: the bilateral U.S.-Panama Free Trade Agreement; the... 2006
Philip P. Frickey Transcending Transcendental Nonsense: Toward a New Realism in Federal Indian Law 38 Connecticut Law Review 649 (May, 2006) Felix Cohen, the influential legal realist, produced the most important work in federal Indian law, the famous treatise that appeared in the 1940s. There is a potential disconnect between these two aspects of Cohen's work. His legal realism scorned abstract legal conceptualisms in favor of the law in action, while the treatise categorized and... 2006
Brian P. McClatchey Tribally-owned Businesses Are Not "Employers": Economic Effects, Tribal Sovereignty, and Nlrb V. San Manuel Band of Mission Indians 43 Idaho Law Review 127 (2006) Recently, the National Labor Relations Board (NLRB) held that tribally owned casino and bingo businesses, operating within reservations, are subject to the National Labor Relations Act (NLRA), contrary to its established precedent. Arguably, the NLRB read the NLRA in light of a discredited standard for statutes of general application. Congress... 2006
James Podgers Troubled Paradise 92-AUG ABA Journal 65 (August, 2006) Hardly a shot was fired in the 1893 overthrow of Queen Lili'uokalani that triggered Hawaii's transition from a sovereign nation to a U.S. territory and eventually the 50th state. But since then, various coalitions in Hawaii's melting-pot population have skirmished over the question of whether Native Hawaiians should be granted some measure of... 2006
Jeffrey S. Jacobi Two Spirits, Two Eras, Same Sex: for a Traditionalist Perspective on Native American Tribal Same-sex Marriage Policy 39 University of Michigan Journal of Law Reform 823 (Summer 2006) Recently, several states amended their constitutions to define marriage as only a union between a man and a woman. Many Native American Indian tribal governments thereafter also adopted laws prohibiting homosexual marriages. However, this new policy conflicts with traditional tribal values. This Note shows that historically many tribes accepted and... 2006
Jeffrey S. Jacobi TWO SPIRITS, TWO ERAS, SAME SEX: FOR A TRADITIONALIST PERSPECTIVE ON NATIVE AMERICAN TRIBAL SAME-SEX MARRIAGE POLICY 39 University of Michigan Journal of Law Reform 823 (Summer 2006) Recently, several states amended their constitutions to define marriage as only a union between a man and a woman. Many Native American Indian tribal governments thereafter also adopted laws prohibiting homosexual marriages. However, this new policy conflicts with traditional tribal values. This Note shows that historically many tribes accepted and... 2006
  U.s. Navy Captures Suspected Pirates in Indian Ocean near Somalia 100 American Journal of International Law 487 (April, 2006) According to reports from the U.S. Navy and the U.S. Central Command, in January 2006 the U.S. guided missile destroyer USS Winston S. Churchill seized a vessel suspected of piracy, its Somali crew, and sixteen Indian sailors believed to be hostages in the Indian Ocean, approximately fifty miles off the eastern coast of Somalia. The alleged pirates... 2006
John D. Smelcer Using International Law More Effectively to Secure and Advance Indigenous Peoples' Rights: Towards Enforcement in U.s. and Australian Domestic Courts 15 Pacific Rim Law & Policy Journal 301 (February, 2006) Over the past three decades, indigenous peoples have effected a remarkable redefinition of their status and rights under international law, giving rise to an emerging distinct customary international law of indigenous peoples' rights. Though that process is ongoing, the next critical step is enforcing these congealing rights at home in... 2006
Professor Rebecca Anita Tsosie What Does it Mean to "Build a Nation"? Re-imagining Indigenous Political Identity in an Era of Self-determination 7 Asian-Pacific Law and Policy Journal 38 (Winter, 2006) I am so pleased and honored to be part of this Symposium on Protecting Indigenous Identities: Struggles & Strategies Under International and Comparative Law. I want to extend my deepest thanks and appreciation to Dean Aviam Soifer, Professor Mark Levin, Professor Jonathan Osorio and all of the members of the Asian-Pacific Law & Policy Journal for... 2006
Marina L. Whelan What, If Any, Are the Ethical Obligations of the U.s. Patent Office?: a Closer Look at the Biological Sampling of Indigenous Groups 2006 Duke Law & Technology Review 14 (5/17/2006) The patenting of biological resources collected from indigenous groups has become a controversial trend. Two U.S. patents in particular, one claiming a cell-line from a 26-year old Guayami woman and one claiming a leukemia virus from a Hagahai man in Papua New Guinea, demonstrate just how volatile this issue has become. This iBrief examines how, in... 2006
Gloria Valencia-Weber , Sherri Nicole Thomas When the State Bar Exam Embraces Indian Law: Teaching Experiences and Observations 82 North Dakota Law Review 741 (2006) I. INTRODUCTION. 743 II. UNIVERSITY OF NEW MEXICO'S HISTORY AND INDIAN LAW IN LAW SCHOOL CURRICULUM. 743 A. University of New Mexico Pioneering in 1967: Establishing the Pre-Law Summer Institute. 743 B. Putting Indian Law in the Mainstream Curriculum. 745 III. PUTTING INDIAN LAW INTO THE NEW MEXICO STATE BAR EXAM. 749 A. The New Mexico Bar Project... 2006
Eileen Kaufman Women and Law: a Comparative Analysis of the United States and Indian Supreme Courts' Equality Jurisprudence 34 Georgia Journal of International and Comparative Law 557 (Spring, 2006) Gender inequality has a long and pervasive history in both the United States and India. Not surprisingly, the Constitutions of both countries guarantee equality before the law: India's Constitution explicitly mandates equality for women, whereas the U.S. Constitution guarantees equal protection of the law without any explicit designation of the... 2006
Erin Patrick Lyons "GIVE ME A HOME WHERE THE BUFFALO ROAM": THE CASE IN FAVOR OF THE MANAGEMENT-FUNCTION TRANSFER OF THE NATIONAL BISON RANGE TO THE CONFEDERATED SALISH AND KOOTENAI TRIBES OF THE FLATHEAD NATION 8 Journal of Gender, Race and Justice 711 (Winter 2005) The Flathead Indian Reservation sits on over one million acres of wooded mountains and tranquil valleys carved out of beautiful Montana ranch land just west of the Continental Divide. The reservation's landscape is idyllic. There are mountains, ponderosa pine, rivers, streams, and lakes, including Flathead Lake, the largest natural freshwater lake... 2005
Philip P. Frickey (Native) American Exceptionalism in Federal Public Law 119 Harvard Law Review 431 (December, 2005) I. Introduction: American Exceptionalism, Nation-Building, and Nations Subordinated. 433 II. Exceptionalism in Foundational Federal Indian Law. 437 A. Tribes as Domestic Dependent Nations. 437 B. Exclusion of State Authority. 438 C. Reserved Rights and Canons of Interpretation. 439 D. Unilateral Congressional Power over Indian Affairs?. 440 1.... 2005
  30th Annual Indian Law Conference 52-APR Federal Lawyer 36 (March/April, 2005) Thirty years. Thirty years of struggle and triumph. 2005 marks the 30th anniversary of the FBA Indian Law Conference. With humble beginnings and soaring ideals, the FBA Indian Law Conference has become an integral part of the legal landscape for practitioners, law students, and the many others who have joined the battle to preserve tribal rights,... 2005
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