AuthorTitleCitationSummaryYear
George K. Walker Principles for Collective Humanitarian Intervention to Succor Other Countries' Imperiled Indigenous Nationals 18 American University International Law Review 35 (2002) I. STATE OF NECESSITY. 40 II. THE PROPOSED PRINCIPLES. 55 A. Prior Situations. 55 B. State of Necessity: Opposing Principles and Policies. 66 C. Analysis of Principles and Factors Governing State of Necessity Intervention. 70 1. Restating the Restatements' Principles. 74 2. Refining the International Law Commission and the Restatements' Analyses... 2002
Ryan K. Danby, D. Scott Slocombe Protected Areas and Intergovernmental Cooperation in the St. Elias Region 42 Natural Resources Journal 247 (Spring, 2002) Ecosystem-based management is now recognized as the central approach in protected area planning and management. However, objective analyses and assessments of the types of interagency partnerships and collaborative relationships necessary for successful implementation of such an approach are limited. This article provides a detailed description and... 2002
Alyse D. Bertenthal Providing Equal Educational Opportunities: Title Ix and Indian Tribal Schools 69 University of Chicago Law Review 1271 (Summer 2002) The federal government has long assumed a legal obligation to provide education to the Indian tribes. The government's initial education policy developed as an integral part of its more general policy of civilizing the American Indian. However, federal policies over the past sixty-five years have placed an increasing emphasis on Indian... 2002
Frank James Singer III Providing the General Welfare? Compelling Indian Tribes to Participate in State Unemployment Programs 33 McGeorge Law Review 323 (Winter, 2002) Code Sections Affected Unemployment Insurance Code §§ 125.4, 135, 605, 634.5, 709, 710, 802, 803, 1086, 1128.1, 1253.3, 1735.1 (amended); § § 710.6, 804, 1119, 1141.1 (new). AB 1537 (Horton); 2001 Stat. Ch. 255. We must make it clear that Indians can become independent of Federal control without being cut off from Federal concern and Federal... 2002
Robert B. Porter Pursuing the Path of Indigenization in the Era of Emergent International Law Governing the Rights of Indigenous Peoples 5 Yale Human Rights and Development Law Journal 123 (2002) This Article argues that the meaningful revitalization of Indigenous nations depends upon engaging in a process of indigenization, the active pursuit of a distinct developmental path, culture, and identity. Significant barriers to indigenization include not only political, economic, and social obstacles, but also psychological reliance upon the... 2002
Patricia Thompson Rapporteur's Summary of the Deliberative Forum: Are Environmental Ngos Friends or Foes of Indigenous Peoples? 13 Colorado Journal of International Environmental Law and Policy 75 (Winter 2002) The relationship between indigenous peoples and environmental nongovernmental organizations (NGOs) is shifting. Increasingly, international attention and law are focusing on the rights of indigenous peoples as not only different and distinct from that of environmental NGOs but of greater priority. This is not surprising as it is often an indigenous... 2002
William Trapani Re/cognizing Native American Sovereignty in an Age of Manifest Manners 3 Journal of Law in Society Society 1 (Winter, 2002) According to a circular law with which philosophy is familiar, we will affirm that the one who is the most, most purely, or most rigorously, most essentially, Franco-Maghrebian would allow us to decipher what it is to be Franco-Maghrebian in general. We will decipher the essence of the Franco-Maghrebian from the paradigmatic example of the most... 2002
Kirsten M. Hetzel Reaching Regional Consensus: Examining United States Native American Property Rights in Light of Recent International Developments 10 Tulane Journal of International and Comparative Law 307 (Spring 2002) I. Introduction. 307 II. The International Perspective on Indigenous Peoples' Property Rights. 310 A. International Instruments. 310 1. The Inter-American System. 310 2. UN Developments. 313 B. Customary International Law. 315 III. The Inter-American Court of Human Rights Takes a Giant Step Forward: Awas Tingni v. Nicaragua. 318 A. The Awas Tingni... 2002
Rebecca Tsosie Reclaiming Native Stories: an Essay on Cultural Appropriation and Cultural Rights 34 Arizona State Law Journal 299 (Spring, 2002) My people will sleep for one hundred years. When they awake it will be the artists that give them back their spirit. Louis Riel (Cree/Metis) When one lives in a society where people can no longer rely on the institutions to tell them the truth, the truth must come from culture and art . . . . Every culture has art and probably the first form of art... 2002
Kristin Ann Mattiske Recognition of Indigenous Heritage in the Modern World: U.s. Legal Protection in Light of International Custom 27 Brooklyn Journal of International Law 1105 (2002) The United Nations General Assembly has declared the decade from 1995 to 2004 the International Decade of the World's Indigenous People. The stated goal is to strengthen international cooperation for the solution of problems faced by indigenous people in such areas as human rights, the environment, development, education and health. It is... 2002
Paul M. Sullivan Recognizing the Fifth Leg: the "Akaka Bill" Proposal to Create a Native Hawaiian Government in the Wake of Rice V. Cayetano 3 Asian-Pacific Law and Policy Journal J. 4 (July, 2002) I. Introduction II. Rice v. Cayetano III. The Akaka Bill A. Legislative History B. Core Elements of the Bill C. Critique of the Akaka Bill 1. Mancari, Sandoval and the Lack of a True Tribe 2. Adarand and the Constitutional Test of Strict Scrutiny 3. Omissions and Ambiguities in the Bill 4. The Lack of Resources for the Governing Entity IV.... 2002
Gabriel S. Galanda Reservations of Right 10-OCT Nevada Lawyer 23 (October, 2002) Last year, the United States Supreme Court held in Nevada v. Hicks that the Fallon Paiute-Shoshone tribal court could not adjudicate a tribal member's claims against a Nevada state law enforcement officer for allegedly exceeding the scope of a search warrant on the reservation. You may be asking, So, what does Nevada v. Hicks have to do with my... 2002
Gabriel S. Galanda Reservations of Right: a Practitioner's Guide to Indian Law 32-FALL Brief 64 (Fall, 2002) Over the past decade, Indian tribes throughout the United States have become major players in the nation's economy. Tribes are aggressively creating and operating new businesses in the areas of real estate development, banking and finance, media, telecommunications, wholesale and retail trade, tourism, and gaming. (See sidebar on page 66.) A... 2002
Edward Grauman Resource Rebels: Native Challenges to Mining and Oil Corporations, by Al Gedicks. Cambridge, Mass.: South End Press, 2001. Pp. 241. $18.00, Paper. 15 Harvard Human Rights Journal 345 (Spring, 2002) Our planet is on the brink of ecological disaster. Fossil fuel emissions and rainforest destruction have combined to release enough carbon dioxide into the atmosphere to significantly warm the climate. Toxic chemicals pollute the air, ground and water that sustain us. Delicate ecosystems that nurture the diversity of life are being eradicated. In... 2002
Anthony (T.J.) F. Quan Respeta I Taotao Tano : the Recognition and Establishment of the Self-determination and Sovereign Rights of the Indigenous Chamorros of Guam under International, Federal, and Local Law 3 Asian-Pacific Law and Policy Journal J. 3 (Winter 2002) A. The History of Guam and the Chamorros 1. Arrival of the Ancient Chamorros and Establishment of Culture and Society 2. The Spanish Conquest and Colonial Period 3. The 19th to 20th Centuries: Guam as a U.S. Territory, the Japanese Insurgence, and Its New Social, Political, and Economic Makeup 4. The Chamorro Community, Culture, Heritage, and... 2002
Francine R. Skenandore REVISITING SANTA CLARA PUEBLO V. MARTINEZ: FEMINIST PERSPECTIVES ON TRIBAL SOVEREIGNTY 17 Wisconsin Women's Law Journal 347 (Fall 2002) Much has been written about tribal sovereignty. If those words have any meaning at all, they must mean that a tribe can make and enforce its decisions without regard to whether an external authority considers those decisions wise. To abrogate tribal decisions, particularly in the delicate area of membership, for whatever good reasons, is to... 2002
Jeanette Wolfley Rice V. Cayetano: the Supreme Court Declines to Extend Federal Indian Law Principles to Native Hawaiians Sovereign Rights 3 Asian-Pacific Law and Policy Journal J. 6 (July, 2002) Good Evening. I am honored to be here with you and to participate on this panel to discuss the decision in Rice v. Cayetano. I feel privileged to share some thoughts with you about the decision as it relates to Indian Country, and its impact on Indian tribes and individual Indians. The grand scholar of federal Indian law, Felix S. Cohen, wrote in... 2002
Judith Kimerling Rio + 10: Indigenous Peoples, Transnational Corporations and Sustainable Development in Amazonia 27 Columbia Journal of Environmental Law 523 (2002) I. Introduction. 523 II. Business, Indigenous Peoples, and the Earth Summit. 526 III. Case Study: Occidental Petroleum in Ecuador. 532 A. Background. 534 B. The Two Faces of Occidental. 539 C. Legal and Policy Framework for Community Relations. 541 D. Land Access and Site Selection. 549 E. Self Regulation and the Privatization of Environmental Law.... 2002
Rain Archambeau Rosebud Sioux Tribe V. Mcdivitt, 286 F.3d 1031, Hog Farm Corporation in Indian Country Lacks Standing in Federal Court to Challenge Bia Action Voiding Land Lease 7 Great Plains Natural Resources Journal 244 (Fall 2002) I. Introduction. 245 A. Grounds for Denying Standing. 246 II. Facts and Procedure. 247 A. Hog Farm Project History. 247 B. The Rise of Tribal Opposition. 249 C. Lower Court Decision in Rosebud Sioux Tribe v. Gover. 250 III. Background. 251 A. Standing. 251 B. Zone of Interests Test. 252 C. Summary of Sun Prairie's Prudential Standing Argument. 252... 2002
Richard E. James Sanctuaries No More: the United States Supreme Court Deals Another Blow to Indian Tribal Court Jurisdiction 41 Washburn Law Journal 347 (Winter 2002) Fiat iustitia ruat caelum (Let justice be done though the heavens fall) The Romans believed that the law reigned supreme and justice depended on strict adherence to the law, regardless of the circumstances. In Nevada v. Hicks, the United States Supreme Court put justice and adherence to law first in spite of the storm of criticism the Court... 2002
Wendell W. Weber Scientific Rationales for Population-specific Genetic Research: Pharmacogenetics in Indigenous Peoples 42 Jurimetrics Journal 141 (Winter, 2002) Drug effectiveness and toxicity, like many other human physical and mental traits, depend on ethnicity. Knowledge of ethnic specificity is an essential part of pharmacogenetics, the scientific study of variation in human drug response, because it suggests ways of tailoring drug therapy to individual patients as well as rational design and... 2002
David E. Wilkins, University of Minnesota, Twin Cities Sidney L. Harring, White Man's Law: Native People in Nineteenth-century Canadian Jurisprudence, Toronto: University of Toronto Press, 1998. Pp. 449. $60.00 (Isbn 0-8020-0503-9). 20 Law and History Review 442 (Summer, 2002) Sidney L. Harring, professor of law at Queen's College, City University of New York, who in 1994 wrote Crow Dog's Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century, a solid treatment of how U.S. law both established and abused the legal rights of American Indians, has now turned his focused attention in... 2002
Sheri L. Hazeltine Speedy Termination of Alaska Native Parental Rights: the 1998 Changes to Alaska's Child in Need of Aid Statutes and Their Inherent Conflict with the Mandates of the Federal Indian Child Welfare Act 19 Alaska Law Review 57 (June, 2002) This Article examines the problems with the new Child in Need of Aid (CINA) statutes and how these problems have affected Alaska Native families. The Article discusses how the new CINA statutes have failed to incorporate the special protections found under the federal Indian Child Welfare Act (ICWA) for cases involving Alaska Native children.... 2002
Thomas Kelley Squeezing Parakeets into Pigeon Holes: the Effects of Globalization and State Legal Reform in Niger on Indigenous Zarma Law 34 New York University Journal of International Law & Politics 635 (Spring 2002) Does the white man understand our custom about land? How can he when he does not even speak our tongue? Chinua Achebe Rural Zarma people in the West African Republic of Niger live on the distant fringe of the globalized world. This article will describe the law that they live by and argue that Western-oriented national legal reforms under way in... 2002
Dao Lee Bernardi-Boyle State Corporations for Indian Reservations 26 American Indian Law Review 41 (2001-2002) Reservation American Indians are among the poorest people living in this country. This poverty is not limited to reservations deprived of resources; [d]espite abundant natural resources of land, timber, wildlife, and energy, Indian reservations remain among the most impoverished areas in the United States. Although they have an impressive history... 2002
Elizabeth Cook-Lynn Strategies 34 Arizona State Law Journal 261 (Spring, 2002) Good morning. As a Dakota, one always begins by saying Nape cheuzapi. I want to shake hands with all of you and the essential question which we heard articulated so well, taku iniciapi he? Who are all of you in relation to the rest of us? That is, I guess, what we are interested in as we come here together. This has been a wonderful conference on... 2002
Emily J. Huitsing The Ability of Native American Tribes to Waive Their Tribal Sovereign Immunity in Clear and Unequivocal Contracts to Arbitrate 2002 Journal of Dispute Resolution 213 (2002) Native American tribes enjoy immunity from suits on contracts made on or off a reservation. A tribe is subject to suit only if it has clearly waived its immunity or Congress has expressly authorized the suit. Tribal immunity was given to the tribes on the principle that tribes are sovereigns or quasi sovereigns enjoying immunity from judicial... 2002
Mitchell Peterson The Applicability of Federal Employment Law to Indian Tribes 47 South Dakota Law Review 631 (2002) Employment is one of the most fundamental relationships in the lives of Americans, and, accordingly, Congress has extensively regulated the employment relationship. In the context of Indian tribes as employers, the extent of federal regulation is unclear. Both Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities... 2002
Mitchell Peterson THE APPLICABILITY OF FEDERAL EMPLOYMENT LAW TO INDIAN TRIBES 47 South Dakota Law Review 631 (2002) Employment is one of the most fundamental relationships in the lives of Americans, and, accordingly, Congress has extensively regulated the employment relationship. In the context of Indian tribes as employers, the extent of federal regulation is unclear. Both Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities... 2002
S. James Anaya, Claudio Grossman The Case of Awas Tingni V. Nicaragua: a New Step in the International Law of Indigenous Peoples 19 Arizona Journal of International & Comparative Law L. 1 (Spring, 2002) The people of Awas Tingni did not set about to forge an international legal precedent with implications for indigenous peoples throughout the world, yet that is what they have done. Awas Tingni is one of numerous Mayagna, or Sumo, indigenous communities in the isolated Atlantic Coast region of Nicaragua. The Community has sought simply, but... 2002
Joel Ngugi The Decolonization-modernization Interface and the Plight of Indigenous Peoples in Post-colonial Development Discourse in Africa 20 Wisconsin International Law Journal 297 (Spring, 2002) The two more important developments in Twentieth Century international law were the decolonization movement of the 1950s and 1960s and the recognition of the emerging norm of indigenous peoples rights in international law. More remarkable, however, there has been the creation of discourses in international law that have constrained these two... 2002
Peter J. Gardner The First Amendment's Unfulfilled Promise in Protecting Native American Sacred Sites: Is the National Historic Preservation Act a Better Alternative? 47 South Dakota Law Review 68 (2002) This article briefly reviews the significant obstacles and opportunities encountered by Native Americans in their efforts to protect sacred religious sites. Though the First Amendment might seem a good avenue to this end, in practice it is not. The National Historic Preservation Act, however, may provide a promising alternative, especially if... 2002
Douglas R. Nash , Christopher P. Graham The Importance of Being Honest : Exploring the Need for Tribal Court Approval for Search Warrants Executed in Indian Country after State V. Mathews 38 Idaho Law Review 581 (2002) I. L2-3,T3INTRODUCTION 581 II. L2-3,T3THE MATHEWS DECISIONS 582 A. Background. 582 B. Mathews I. 584 C. Mathews II. 585 D. Mathews III. 586 III. L2-3,T3ANALYSIS OF THE MATHEWS III DECISION 586 IV. L2-3,T3PRACTICAL IMPACTS OF THE MATHEWS III DECISION 588 VI. L2-3,T3EXPLORING THE NEED FOR TRIBAL COURTS' APPROVAL OF STATE ISSUED WARRANTS AS AN ELEMENT... 2002
Richard B. Maltby The Indian Child Welfare Act of 1978 and the Missed Opportunity to Apply the Act in Guardianships 46 Saint Louis University Law Journal 213 (Winter 2002) State courts have had over two decades to mold the Indian Child Welfare Act of 1978 (ICWA or the Act) into a mechanism for protecting Indian heritage while simultaneously providing the ideal nurturing conditions for Indian children who are the subjects of custodial proceedings involving a non-parent. Although there are no typical ICWA cases,... 2002
Thomas E. Luebben , Cathy Nelson The Indian Wars: Efforts to Resolve Western Shoshone Land and Treaty Issues and to Distribute the Indian Claims Commission Judgment Fund 42 Natural Resources Journal 801 (Fall, 2002) International human rights agencies have found the United States in violation of international treaties and human rights standards by denying the Western Shoshone Nation the use of their ancestral lands. The 1863 Treaty of Ruby Valley did not cede any Western Shoshone land to the United States, nor did it purport to take or extinguish Western... 2002
SOMPONG SUCHARITKUL The Inter-temporal Character of International and Comparative Law Regarding the Rights of the Indigenous Populations of the World 50 American Journal of Comparative Law L. 3 (Fall 2002) This report explores ways and means in a selection of comparative legal systems to ensure adequate protection of the rights of indigenous peoples within the territorial confines of national jurisdictions. In most contemporary legal systems, attention has been drawn to the problems of how best to protect and safeguard the various fundamental rights... 2002
Ward Churchill The Law Stood Squarely on its Head: U.s. Legal Doctrine, Indigenous Self-determination and the Question of World Order 81 Oregon Law Review 663 (Fall 2002) It's a travesty of a mockery of a sham. Groucho Marx As anyone who has ever debated or negotiated with U.S. officials on matters concerning American Indian land rights can attest, the federal government's first position is invariably that its title to/authority over its territoriality was acquired incrementally, mostly through provisions of cession... 2002
Robert B. Porter The Meaning of Indigenous Nation Sovereignty 34 Arizona State Law Journal 75 (Spring, 2002) A lot of Indians and non-Indians, especially policymakers, lawyers, and scholars, have spent a lot of time trying to figure out what sovereignty means as it relates to the Indigenous peoples and nations of the world. Having long been a participant in this quest myself, I too, have come up with a few ideas about what the term means. As I see it,... 2002
Barbara A. Cosens The Measure of Indian Water Rights: the Arizona Homeland Standard, Gila River Adjudication 42 Natural Resources Journal 835 (Fall, 2002) On November 26, 2001, the Arizona Supreme Court concluded that Indian reservations were established as homelands. By articulating a homeland standard for the measure of reserved water rights based on tribal economic development plans, cultural needs, and historic water uses, the Arizona Supreme Court has eliminated many of the blatant inequities... 2002
Stacy L. Leeds The More Things Stay the Same: Waiting on Indian Law's Brown V. Board of Education 38 Tulsa Law Review 73 (Fall 2002) Not everything that is faced can be changed, but nothing can be changed until it is faced. James Baldwin Lone Wolf v. Hitchcock has been referred to as the Indians' Dred Scott decision. Although Dred Scott was a negro[ ] of the African race, and Lone Wolf was a Kiowa of the Indian race, the similarities within these decisions are chilling.... 2002
David S. Johnston The Native American Plight: Protection and Preservation of Sacred Sites 8 Widener Law Symposium Journal 443 (2002) A wee child toddling in a wonder world, I prefer to their dogma my excursions into the natural gardens where the voice of the Great Spirit is heard in the twittering of birds, the rippling of mighty waters, and the sweet breathing of flowers. Freedom of religion drove thousands of Europeans to the New World, but to this date our society still... 2002
Lindsay Glauner The Need for Accountability and Reparation: 1830-1976 the United States Government's Role in the Promotion, Implementation, and Execution of the Crime of Genocide Against Native Americans 51 DePaul Law Review 911 (Spring 2002) The opposite of love is not hate; it's indifference. The opposite of art is not ugliness; it's indifference. The opposite of faith is not heresy; it's indifference. The opposite of life is not death; it's indifference. Because of indifference, one dies before one actually dies. Elie Wiesel. On September 8, 2000, the head of the Bureau of Indian... 2002
Andrea M. Seielstad The Recognition and Evolution of Tribal Sovereign Immunity under Federal Law: Legal, Historical, and Normative Reflections on a Fundamental Aspect of American Indian Sovereignty 37 Tulsa Law Review 661 (Spring 2002) It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the union. [Indian tribes are] distinct, independent... 2002
Andrea M. Seielstad THE RECOGNITION AND EVOLUTION OF TRIBAL SOVEREIGN IMMUNITY UNDER FEDERAL LAW: LEGAL, HISTORICAL, AND NORMATIVE REFLECTIONS ON A FUNDAMENTAL ASPECT OF AMERICAN INDIAN SOVEREIGNTY 37 Tulsa Law Review 661 (Spring 2002) It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the union. [Indian tribes are] distinct, independent... 2002
Claudeen Bates Arthur The Role of the Tribal Attorney 34 Arizona State Law Journal 21 (Spring, 2002) My name is Claudeen Bates Arthur. That is what they call me, but who I really am is a Tsenjikini woman. My fathers are Naaneesht'ezhi Tachiinii and my grandparents on my father's side are Kinyaa'aanii and on my mother's side are Naakai. That is who I really am. I also am the grandmother of eight grandsons and only one granddaughter. I tell you this... 2002
Kathleen A. Kannler The Struggle among the States, the Federal Government, and Federally Recognized Indian Tribes to Establish Water Quality Standards for Waters Located on Reservations 15 Georgetown International Environmental Law Review 53 (Fall, 2002) I. L2-3,T3Introduction 54 II. L2-3,T3The Authority of the Tribes and the Federal Government to Control the Regulation of Water Quality on Reservations 55 A. The Tribes' Inherent Authority to Set Water Quality Standards and Regulate Their Members' Conduct that Affects the Reservations' Water Quality. 55 B. Federal Legislation and Treaties: The... 2002
Dean B. Suagee The Supreme Court's "Whack-a-mole" Game Theory in Federal Indian Law, a Theory That Has No Place in the Realm of Environmental Law 7 Great Plains Natural Resources Journal 90 (Fall 2002) I. A Short Explanation of the Court's Whack-a-Mole Game Theory. 97 A. The General Proposition of Montana v. United States. 97 B. The Whack-a-Mole Line of Cases. 99 C. The 2001 Decisions. 102 1. Atkinson Trading Company, Inc. v. Shirley. 102 2. Nevada v. Hicks. 104 D. The Importance of the Sweeping Premise. 105 II. The Court's Disregard for... 2002
Ratna Kapur The Tragedy of Victimization Rhetoric: Resurrecting the "Native" Subject in International/post-colonial Feminist Legal Politics 15 Harvard Human Rights Journal J. 1 (Spring, 2002) Through traveling to other people's worlds we discover that there are worlds in which those who are the victims of arrogant perception are really subjects, lively beings, constructors of vision even though in the mainstream construction they are animated only by the arrogant perceiver and are pliable, foldable, file-awayable, classifiable.... 2002
Kathryn R.L. Rand There Are No Pequots on the Plains: Assessing the Success of Indian Gaming 5 Chapman Law Review 47 (Spring 2002) We had tried poverty for 200 years, so we decided to try something else. Ray Halbritter was referring to his own tribe, the Oneida Indian Nation of New York, but the sentiment might have applied to each of the nearly 150 tribes that decided to pursue casino-style gaming during the 1990s as a means of tribal economic development. For the last... 2002
Robert N. Clinton There Is No Federal Supremacy Clause for Indian Tribes 34 Arizona State Law Journal 113 (Spring, 2002) They say we have been here before and made an alliance. The Dutch, indeed, say we are brothers and are joined together with chains, but that lasts only as long as we have beavers. After that we are no longer thought of, but much will depend upon it when we shall need each other. [They thereupon gave two beavers.] They say, the alliance which was... 2002
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