Sari Graben Lessons for Indigenous Property Reform: from Membership to Ownership on Nisga'a Lands 47 U.B.C. Law Review 399 (July, 2014) Through its ability to deliver legal certainty, reduce transaction costs, and facilitate taxation, individuated ownership of First Nation land in Canada is expected to provide freedom of choice for individuals as well as serve as a basis for entrepreneurialism necessary for economic development. Furthermore, apprehension about the impacts of... 2014
Patrick Wieland , Thomas F. Thornton Listening to (Some) Barking Dogs: Assessing Hernando De Soto's Recipe for the Development of the Amazon Natives of Peru 30 Harvard Journal on Racial & Ethnic Justice 131 (Spring 2014) The work of Peruvian economist Hernando de Soto is both influential and controversial. His 2000 bestseller The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else posits that to solve poverty in the developing world, the poor need to transition from the extralegal sector to the official economy through formal property... 2014
Andrew Q. Leba Lowering the "Efficacy" Threshold for Section 3(d) of the Indian Patents (Amendment) Act 2005: a Case for a Broader Scope 28 Emory International Law Review 649 (2014) For over thirty years, India, dubbed the world's pharmacy, has enjoyed exponential growth. Its once-nonexistent domestic pharmaceutical industry has transformed into a global manufacturer of generic drugs, providing access to low-cost critical medication for its one billion-plus population. However, 2005 marked the beginning of an extraordinary... 2014
  Manhattan Arrest of Indian Consular Official Sparks Public Dispute Between the United States and India 108 American Journal of International Law 325 (April, 2014) In December 2013, an Indian consular official was arrested in New York City, provoking ongoing outrage and retaliation against the United States by the Indian government. Devyani Khobragade was a seasoned Indian diplomat when she accepted the position of deputy consul general for political, economic, commercial, and women's affairs at the Consulate... 2014
John Weaver, McMaster University Mark Hickford, Lords of the Land: Indigenous Property Rights and the Jurisprudence of Empire, Oxford: Oxford University Press, 2012. Pp. 523. $140.00 (Isbn 978-0-19-956865-9) 32 Law and History Review 205 (February, 2014) Native title materialized from the common law idea that occupants have interests in places they hold. Rival interests could not be settled at law, as they did not originate in a Crown patent but in mere occupancy. When the Crown recognized native title, it had to be cleared by formal process and compensation prior to issuing patents. For distinct... 2014
Edward A. Lowe Mashantucket Pequot Tribe V. Town of Ledyard: the Preemption of State Taxes under Bracker, the Indian Trader Statutes, and the Indian Gaming Regulatory Act 47 Connecticut Law Review 197 (November, 2014) The Indian Tribes of the United States occupy an often ambiguous place in our legal system, and nowhere is that ambiguity more pronounced than in the realm of state taxation. States are, for the most part, preempted from taxing the Indian Tribes, but something unique happens when the state attempts to levy a tax on non-Indian vendors employed by a... 2014
Robert Gloudemans Mass Appraisal of Indian Lands for Federal Buy-back Program 17 Valuation Strategies 18 (July/August, 2014) As evidenced by their use in the Land Buy-Back Program for Tribal Nations, mass appraisal methods can produce sound land valuations when supported by the necessary data. The Land Buy-Back Program for Tribal Nations (Buy-Back program) is a program to purchase individually held Indian lands and return them to tribal ownership. The program originates... 2014
Mitchell G. Enright Michigan V. Bay Mills Indian Cmty., 134 S.ct. 2024 (2014) 90 North Dakota Law Review 191 (2014) In Michigan v. Bay Mills Indian Community, the United States Supreme Court held that the Indian Gaming Regulatory Act (IGRA) did not implicitly or explicitly abrogate the common law doctrine of tribal sovereign immunity so as to allow a state to file a federal suit against an Indian tribe for illegal gambling activity taking place outside of... 2014
Katherine Hinderlie, Rose Petoskey Michigan V. Bay Mills Indian Community (12-515) 61-MAR Federal Lawyer 73 (March, 2014) 1. Can a federal court exercise jurisdiction over a state's suit alleging violations of the Indian Gaming Regulatory Act (IGRA) when the gaming activity is not located on Indian lands? 2. Does tribal sovereign immunity bar a state from suing a tribe in federal court for violations of the IGRA? The IGRA, 25 U.S.C. § 2701 et seq., authorizes an... 2014
Anna O'Brien Misadventures in Indian Law: the Supreme Court's Patchak Decision 85 University of Colorado Law Review 581 (Spring 2014) After today, any person may sue under the Administrative Procedure Act . . . to divest the Federal Government of title to and possession of land held in trust for Indian tribes . . . so long as the complaint does not assert a personal interest in the land. - Justice Sotomayor, dissenting in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.... 2014
Joe Menden Montana Native Rising to Top Spot on Circuit 40-NOV Montana Lawyer 10 (November, 2014) When Brian Pomper arrived in Billings in 1996 to be a law clerk for the Hon. Sidney Thomas, he didn't know a lot about his new boss. He knew that Thomas, then newly appointed to the Ninth Circuit Court of Appeals, was a well-respected Montana lawyer. But Pomper was immediately struck by a few of Thomas' qualities: For someone in such a powerful... 2014
Melina Angelos Healey Montana's Rural Version of the School-to-prison Pipeline: School Discipline and Tragedy on American Indian Reservations 75 Montana Law Review 15 (Winter, 2014) Introduction. 17 I. Foundations of the Pipeline. 18 A. The Nationwide School-to-Prison Pipeline. 18 B. Tribes and Reservations Examined in this Article. 21 II. Background and Approach. 23 A. The Legacy of American Indian Boarding Schools and Educational Segregation. 23 III. The Data: The Presence of Pipeline Indicators in Montana. 25 A. The Harmful... 2014
Shin Imai , Ashley Stacey Municipalities and the Duty to Consult Aboriginal Peoples: a Case Comment on Neskonlith Indian Band V Salmon Arm (City) 47 U.B.C. Law Review 293 (January, 2014) The duty to consult and accommodate has become one of the most important principles of Canadian Aboriginal law. Since Haida Nation v British Columbia (Minister of Forests), the Supreme Court of Canada has sought to clarify the boundaries of consultation in order to ensure that developments affecting Aboriginal rights proceed with a degree of... 2014
Kate Shearer Mutual Misunderstanding: How Better Communication Will Improve the Administration of the Indian Child Welfare Act in Texas 15 Texas Tech Administrative Law Journal 423 (Summer, 2014) I. Introduction. 423 II. Background: A Juxtaposition of the Primary Goals for Removed Children Under the Indian Child Welfare Act and Under the Texas Department of Family and Protective Services. 425 A. The Goals of Child Protective Services Following Removal. 425 1. Best Interests of the Child. 425 2. Permanency Plan. 426 3. Minimum Sufficient... 2014
Neha Bhat 'My Name Is Khan' and I Am Not a Terrorist: Intersections of Counter Terrorism Measures and the International Framework for Refugee Protection 15 San Diego International Law Journal 299 (Spring 2014) I. Introduction: Terrorism in the New World Order. 300 II. One Man's Terrorist, Another's Freedom Fighter: Definitional Challenges. 305 A. Defining Terrorism: Elements of Crime. 305 B. Generic Definition of Terrorism: From the League of Nations to the UN. 306 C. Terrorism: Specific Conventions. 308 D. Terrorism: Regional Conventions. 308 E.... 2014
Rachel Awan Native American Oral Traditional Evidence in American Courts: Reliable Evidence or Useless Myth? 118 Penn State Law Review 697 (Winter 2014) American history is rife with conflict between Native American cultures and the Anglo-American legal system. When Native American groups bring claims in federal court, they face a host of biases that fail to consider their distinctive cultural background. One such bias concerns the use of oral traditional evidence as testimony at trial. Because... 2014
William H. Howery III Native Village of Eyak V. Blank: Fish Is Best Rare; Justice,not So Much 44 Golden Gate University Law Review 47 (April, 2014) Treat the earth well: it was not given to you by your parents; it was loaned to you by your children. Archaeological evidence shows the Chugach people began inhabiting the Copper River Delta and coastal lands along the Prince William Sound inlet of the Gulf of Alaska when the glaciers of the last ice age receded. The Chugach have always been... 2014
Ralph Smith Native Village of Point Hope V. Jewell: Analyzing the Environmental Impact of Uncertain Quantities of Oil Production 28 Tulane Environmental Law Journal 137 (Winter 2014) I. Overview. 137 II. Background. 138 A. Considering the Environment in the Offshore Oil and Gas Development Process. 138 B. Judicial Review of an Agency's Environmental Analysis. 140 III. The Court's Decision. 141 A. Essential Information in the FEIS. 141 B. Oil Production Estimate. 142 C. Judge Rawlinson's Dissent. 144 IV. Analysis. 145 V.... 2014
Troy A. Eid No Surrender: Fighting for Native American Justice 9 FIU Law Review 211 (Spring 2014) EDITOR'S NOTE: This essay is excerpted from the Keynote Remarks of the Honorable Troy A. Eid before the FIU Law Review's 2014 Symposium, From War and Removal to Resurgence: The Legal and Political History of Florida Tribal Governments, held at the Florida International University College of Law on February 28, 2014. Thanks very much to the Law... 2014
  Nsr General Permits Proposed for Minor Sources in Indian Country 24 No.2 Air Pollution Consultant 2.1 (2014) On January 14, 2014 (79 FR 2546-2573), EPA proposed new source review (NSR) general permits for new and modified minor sources located in Indian Country. General permits streamline the preconstruction permitting of new or modified minor sources because they involve the issuance of one permit that can apply to similar sources throughout the country.... 2014
Zachary Mason Nuclear Intentions and Implied Preemption: How Entergy Nuclear Vermont Yankee, Llc V. Shumlin Gives Indian Point a Fighting Chance to Stay in Business 3 American University Business Law Review 197 (2014) The New York State Department of Environmental Conservation (NYSDEC) has denied subsidiaries of the Entergy Corporation a Clean Water Act Section 401 Water Quality Certificate for the cooling systems at the Indian Point Energy Center. This action effectively forces Entergy to construct cooling towers to continue operating, and might force Entergy... 2014
Fahad Ahmad Bishara Paper Routes: Inscribing Islamic Law Across the Nineteenth-century Western Indian Ocean 32 Law and History Review 797 (November, 2014) Sometime during the middle of the nineteenth century, a correspondent from the interior of Oman wrote to the jurist Sa'id bin Khalfan Al-Khalili (c. 1811-70) with an observation: The Mazru'is have wealth on the Swahili coast [<>] and wealth in Oman. This in itself was no surprise: the Mazru'is, along with scores of other Arab... 2014
Andrea Wallace Patriotic Racism: an Investigation into Judicial Rhetoric and the Continued Legal Divestiture of Native American Rights 8 DePaul Journal for Social Justice 91 (Winter 2014) It is difficult to get a man to understand something when his salary depends on his not understanding it.-- Upton Sinclair Americans live in a country where race was once legally institutionalized. In fact, it was only 50 years ago that the United States' legal system officially ceased to operate as a mechanism that explicitly condoned racism.... 2014
  Permitting Date Extended for Oil and Gas Sector Minor Sources in Indian Country 24 No.5 Air Pollution Consultant 2.46 (2014) On June 16, 2014 (79 FR 34231-34240), EPA extended from September 2, 2014 to March 2, 2016 the date upon which new or modified true minor sources in the oil and gas sector that are located in Indian country from must begin obtaining preconstruction new source review (NSR) permits. The final rule also extends the date upon which minor modifications... 2014
Katherine A. Kelter Pirate Patents: Arguing for Improved Biopiracy Prevention and Protection of Indigenous Rights Through a New Legislative Model 47 Suffolk University Law Review 373 (2014) Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, . . . [and] knowledge of the properties of fauna and flora . . . .... 2014
Steven L. Mangold Progress in Self-determination: Navigating Funding for Isda Contracts after Salazar V. Ramah Navajo Chapter 38 American Indian Law Review 261 (2013-2014) In the recently decided Salazar v. Ramah Navajo Chapter, the Supreme Court held that when Congress appropriates a sufficient amount of funds for any one contractor for contract support costs under a lump-sum appropriation for contracts under the Indian Self-Determination and Education Assistance Act (ISDA), but an insufficient amount to cover all... 2014
Joanna Woolman , Sarah Deer Protecting Native Mothers and Their Children: a Feminist Lawyering Approach 40 William Mitchell Law Review 943 (2014) I. Introduction. 944 II. Background: Native American Experiences with Child Protective Services. 947 A. Precolonial Native Motherhood. 947 B. Colonization and Native Mothers. 950 1. Missionary Belief Systems About the Cultural Inferiority of Native Women's Mothering Skills. 950 2. Native Mothers and the Early American Child Protection System. 951... 2014
Stefan Kirchner Protecting Sea Lanes and Maritime Installations in the Western Indian Ocean Against Terrorism and Piracy: Beyond Atalanta 22 Willamette Journal of International Law and Dispute Resolution 31 (2014) I. Introduction. 31 II. Macro-Approaches. 34 A. Social Conditions. 34 B. Law Enforcement. 35 C. Denial of Sanctuary. 36 III. Micro-Approaches. 37 A. Ships and Fixed Installations: Defensive Measures. 37 1. Illumination. 37 2. Steering. 37 3. Firearms on Board Ships. 38 4. A Role for Private Military and Security Companies?. 40 5. Non-Lethal... 2014
Mark Anderson Protecting the Rights of Indigenous and Multicultural Children and Preserving Their Cultures in Fostering and Adoption 52 Family Court Review Rev. 6 (January, 2014) This article examines transracial/cultural placement of children for fostering and adoption as discussed within the context of expert evidence in applications for permanent placement. Transracial/cultural placement raises the issues of attachment and identity. The undesirability of the child being raised apart from the natural biological family's... 2014
  Psd Regulations Revised to Allow Delegation of Program to Indian Tribes 24 No.4 Air Pollution Consultant 2.21 (2014) In an April 21, 2014 final rule (79 FR 22028-22032), EPA revised the federal prevention of significant deterioration (PSD) regulations to permit the agency to delegate the program to Indian tribes. Previously, the regulatory language in 40 CFR §52.21 limited the agency's ability to delegate the federal PSD program to Indian tribes. The final rule... 2014
Reid Peyton Chambers Reflections on the Changes in Indian Law, Federal Indian Policies and Conditions on Indian Reservations since the Late 1960s 46 Arizona State Law Journal 729 (Fall 2014) I want to begin by thanking my longtime friend and colleague Bob Clinton for his too generous introduction, and to Bob and the faculty at the Law School for inviting me to give this lecture in honor of Judge Canby. I also want to thank my many friends and colleagues in the audience who have sat through water rights negotiations in Arizona with me... 2014
Leroy “J.R.” LaPlante Remarks on the 2014 Rural Practice Symposium: Indian Country & Rural South Dakota 59 South Dakota Law Review 463 (2014) Thank you, I am always really humbled when I am invited back to USD. I have been back to the law school a couple of times since I graduated and given some talks during the Indian Law Symposium and other events, and I am always glad to be here. I want to thank the Law Review for inviting me. From what I understand, you have put together a great... 2014
Michael H. LeRoy Remedies for Unlawful Alien Workers: One Law for the Native and for the Stranger Who Resides in Your Midst? An Empirical Perspective 28 Georgetown Immigration Law Journal 623 (Spring, 2014) In Hoffman Plastic Compounds, Inc. v. NLRB, the Supreme Court ruled that the National Labor Relations Board (NLRB) could not order back pay for an unlawful alien whose employer fired him for supporting a union. While the majority reasoned that the Immigration Reform and Control Act of 1986 (IRCA) would be undermined by the Board's remedy, four... 2014
David E. Selden Researching American Indian Tribal Law 43-FEB Colorado Lawyer 51 (February, 2014) In 1997, U.S. Supreme Court Justice Sandra Day O'Connor made reference to the importance of tribal sovereignty and tribal law, stating: Today in the United States, we have three types of sovereign entities--the federal government, the States, and the Indian tribes. Each of the three sovereigns has its own judicial system, and each plays an... 2014
Ben Juratowitch Resolution of Disputes Involving the Rights of Indigenous Peoples and Extraction of Natural Resources by Foreign Investors 108 American Society of International Law Proceedings Proc. 5 (April 7-12, 2014) The question put to me concerns a perceived tension between the state duty to protect human rights, specifically the rights of indigenous peoples, and other state obligations such as those owed to foreign investors under investment treaties. James Anaya's final thematic report as Special Rapporteur on the Rights of Indigenous Peoples noted that... 2014
  Revisions Made to Indian Country Minor Source Nsr Program 24 No.5 Air Pollution Consultant 2.35 (2014) In a May 30, 2014 final rule (79 FR 31035-31045), EPA revised the new source review (NSR) permitting requirements for minor sources located in Indian country. First, the final rule expands the list of emission units and activities that are exempt from the tribal minor source NSR program. Second, the final rule adds definitions of begin... 2014
Allison M. Dussias Room for a (Sacred) View? American Indian Tribes Confront Visual Desecration Caused by Wind Energy Projects 38 American Indian Law Review 333 (2013-2014) I. By the Dawn's Early Light: The Wampanoag Tribe and the Cape Wind Energy Project. 336 A. The Wampanoag Tribe of Aquinnah and Nantucket Sound. 337 B. The Cape Wind Energy Project and Federal Regulatory Requirements. 340 C. The Tribe and the CWEP Federal Approval Process. 348 1. The Permit Application and NEPA Review. 348 2. NHPA Section 106... 2014
Susan Bibler Coutin , Justin Richland , Véronique Fortin Routine Exceptionality: the Plenary Power Doctrine, Immigrants, and the Indigenous under U.s. Law 4 UC Irvine Law Review 97 (March, 2014) I. Plenary Power and the Fullness of Law. 101 II. Originary Moments. 106 III. Routine Exceptionality, or Hiding in Plain Sight. 115 2014
Amelia Coates Sacred Rain Arrow: Honoring the Native American Heritage of the States While Balancing the Citizens' Constitutional Rights 38 American Indian Law Review 501 (2013-2014) Many states' histories and traditions are steeped heavily in Native American culture, which explains why tribal imagery and symbolism are prevalent in official state paraphernalia such as license plates, flags, and state seals. Problems arise for states using Native American artwork when a citizen takes offense to the religious implications of... 2014
Brenda Reddix-Smalls Satellite Remote Sensing and Database Management: Who Owns the Digitized Information Relating to Indigenous People and Their Artifacts? 37 North Carolina Central Law Review Rev. 1 (2014) Recently, two scientists used Google Earth satellite imagery to estimate the area of the fields and the size of the village of a remote tribe in Lowland South America, surrounding the Amazon Basin. This is reportedly one of the last indigenous societies experiencing limited contact with the outside world. The remote surveillance is purportedly the... 2014
Sam Grey Self-determination, Subordination, and Semantics: Rhetorical and Real-world Conflicts over the Human Rights of Indigenous Women 47 U.B.C. Law Review 495 (July, 2014) Insofar as Indigenous women have advocated for a human rights-based approach to gender injustice, and insofar as Indigenous nations have posited collective human rights as necessary for the protection of cultural distinction, these projects should be reconcilable. It is possible, in fact, to conceptualize both as a single Indigenous... 2014
Gregory S. Fisher , Erin “Faith” Rose Selling Ice in Alaska: Employment Preferences and Statutory Exemptions for Alaska Native Corporations 40 Years after Ancsa 31 Alaska Law Review Rev. 1 (June, 2014) In 1971, Congress enacted the Alaska Native Claims Settlement Act (ANCSA) in order to settle land disputes between Alaska Natives and the federal government. ANCSA established Alaska Native Corporations (ANCs), which were tasked with managing settlement funds to provide for the health, education, and economic welfare of Alaska Natives. To enable... 2014
Marisol León Silenced by Bureaucratic Adjudication: Mesoamerican Indigenous Language Speakers and Their Right to Due Process of Law 30 Harvard Journal on Racial & Ethnic Justice 339 (Spring 2014) IF A PERSON CANNOT UNDERSTAND WHAT IS HAPPENING IN THE COURTROOM PROCEEDING, AN UNFAIR RESULT MIGHT OCCUR. AND THAT IS CONTRADICTORY TO WHAT WE WANT OUR COURTS TO DO: ADMINISTER JUSTICE, FAIRLY AND IMPARTIALLY. JUDGE RICHARD S. BROWN While the federal constitution fails to recognize a litigant's right to an interpreter, several of its... 2014
  Six Additional Nsr General Permits Proposed for Minor Sources in Indian Country 24 No.6 Air Pollution Consultant 4.1 (2014) On July 17, 2014 (79 FR 41846-41871), EPA proposed six additional new source review (NSR) general permits for new or modified minor sources located in Indian country. The source categories covered by the proposed general permits are: 1) concrete batch plants, 2) boilers, 3) stationary spark ignition engines, 4) stationary compression ignition... 2014
Brandon Hammer Smooth Sailing: Why the Indian Film Industry Remains Extremely Successful in the Face of Massive Piracy 5 Harvard Journal of Sports & Entertainment Law 147 (Winter, 2014) C1-3Table of Contents I. Introduction. 148 II. India's Robust Copyright Regime. 155 A. Ample Protection. 156 B. A Host of Remedies. 159 C. Concerns About the Regime. 165 III. Lack of Enforcement. 167 A. The Ineffectiveness of Judicial Proceedings. 167 B. Lack of Police Cooperation. 170 C. Lack of International Cooperation. 171 IV. Enforcement-Based... 2014
Marc Galanter Snakes and Ladders: Suo Moto Intervention and the Indian Judiciary 10 FIU Law Review 69 (Fall 2014) Legal systems are hierarchical constructions, some taller and deeper, some shallower, and commonly portrayed as an orderly pyramid. Sometimes an incident in this hierarchic landscape reminds us that, as in a game of snakes and ladders, there may be startling and unexpected connections (and disconnects) between different locations in the system. I... 2014
Rehan Abeyratne Socioeconomic Rights in the Indian Constitution: Toward a Broader Conception of Legitimacy 39 Brooklyn Journal of International Law L. 1 (2014) Introduction. 2 I. Theoretical Framework. 8 A. Justice as Fairness. 8 B. The Constraint of Public Reason. 14 1. A Shift in Rawlsian Thought. 14 2. Public Reason and the Supreme Court. 16 C. Socioeconomic Rights as Constitutional Rights. 17 1. The Democratic Objection. 20 2. The Contractarian Objection. 22 II. The Framing of the Indian Constitution.... 2014
Erin Marie Erhardt States Versus Tribes: the Problem of Multiple Taxation of Non-indian Oil and Gas Leases on Indian Reservations 38 American Indian Law Review 533 (2013-2014) Taxation of business operations on Indian land presents a murky issue, particularly when the business operations involve non-tribal members engaging in business on Indian lands. One context where this issue often arises is in the field of natural resources. Because oil and gas are such important commodities, not just on and off American Indian... 2014
Jane Burke The "Baby Veronica" Case: Current Implementation Problems of the Indian Child Welfare Act 60 Wayne Law Review 307 (Spring, 2014) Save Veronica has become a common phrase in the American South over the past year. It appears on the signs of local businesses, is stamped on light purple bracelets, and is the rallying cry for fundraisers, candlelight vigils, and cupcake sales on holidays. It is the topic of many newspaper articles and television news broadcasts and was recently... 2014
Eleanor Marie Lawrence Brown The Blacks Who "Got Their Forty Acres": a Theory of Black West Indian Migrant Asset Acquisition 89 New York University Law Review 27 (April, 2014) The impediments to property acquisition and market success among African Americans are a significant area of inquiry in legal scholarship. The prevailing narrative on the historical relationship between Blacks and property is overwhelmingly focused on loss. However, in the political science, economics, and sociology literatures there is a... 2014
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