Curtis G. Berkey , Managing Partner, Berkey Williams LLP The California Life Protection Act and Indian Tribes: a New Era of Collaboration in Protecting Marine and Cultural Resources 2014 Aspatore 2326379 (April, 2014) For much of the history of Indian tribes in California, the US Supreme Court's characterization of states as the deadliest enemies of the tribes has been all too accurate. California's Indian policies have run the gamut from physical extermination of Indian people; assimilation; indifference; and, in the latter decades of the twentieth century, a... 2014
Winston P. Nagan , Craig Hammer The Conceptual and Jurisprudential Aspects of Property in the Context of the Fundamental Rights of Indigenous People: the Case of the Shuar of Ecuador 58 New York Law School Law Review 875 (2013/2014) The conceptual and jurisprudential basis of property in indigenous culture differs from notions of property, especially private property, in the modern economic order. Private property is a central and pivotal precept in the modern economic order; it holds a place of primacy and deference. In part, this is because private property functions... 2014
Shawn E. Regan , Terry L. Anderson The Energy Wealth of Indian Nations 3 LSU Journal of Energy Law & Resources 195 (Fall, 2014) Economists have long sought to explain why some nations are rich while others are poor. Although the recipe for growth remains a matter of debate, most agree that secure property rights and a stable rule of law are necessary ingredients for economic growth. Property rights provide incentives to generate wealth, encourage resource stewardship, and... 2014
Sarah Melz The Epa, Outer Continental Shelf Sources, and Deference Resisting Environmental Destruction on Indigenous Lands 20 Journal of Environmental and Sustainability Law 133 (Spring, 2014) The Environmental Protection Agency (EPA) receives much criticism. There are people and groups who think the agency puts too many unnecessary restrictions on businesses, an argument that is more charged than usual during the current strained economic situation in the United States. Conversely, there are those who believe the EPA does not go far... 2014
Joseph William Singer The Indian States of America: Parallel Universes & Overlapping Sovereignty 38 American Indian Law Review Rev. 1 (2013-2014) We live in the United States of America. Or do we? Look at a typical map of the United States. It shows the external borders of the country and, of course, the states, which are pretty important in our political system, as the meeting of the Electoral College following the 2012 popular election reminded us. This is the map most of us grew up with.... 2014
Hon. Elizabeth Ann Kronk Warner The Miner's Canary Foretelling the Fate of the World: Climate Change and Native Communities 61-APR Federal Lawyer Law. 4 (April, 2014) At this very moment, entire communities in the United States are threatened with total annihilation. Increasingly intense super storms and massive erosion menace these communities, and the possibility of being swept into the ocean always looms large on the horizon. The scene is not part of a screenplay for a major Hollywood production, but,... 2014
Lauren Sampson The Obscenities of this Country : Canada V. Bedford and the Reform of Canadian Prostitution Laws 22 Duke Journal of Gender Law & Policy 137 (Fall 2014) In February 2002, following a search for illegal weapons that turned up the belongings of several missing women, the Vancouver Police Department laid charges of first-degree murder against Robert Pickton for the deaths of Sereena Abotsway and Mona Wilson, two Aboriginal women working as street-level prostitutes in Vancouver's Downtown Eastside.... 2014
F. Michael Willis The Power to Tax Economic Activity in Indian Country 28-SPG Natural Resources & Environment Env't 8 (Spring, 2014) As Chief Justice John Marshall wrote nearly two centuries ago, the power to tax involves the power to destroy. McCulloch v. Maryland, 17 U.S. 316, 431 (1819). In McCulloch, the Court held that a state tax on an instrumentality created by Congress was unconstitutional. Not long after McCulloch, the Supreme Court invalidated the application of a... 2014
Justin Nyberg The Promise of Indian Water Leasing: an Examination of One Tribe's Success at Brokering its Surplus Water Rights 55 Natural Resources Journal 181 (Fall 2014) After reaching water rights settlements, a number of Native American tribes find themselves with rights to more water than their reservations or pueblo communities presently need. As climate change exacerbates drought conditions in the western United States and demand for water increases, some tribes have leased these surplus water rights to public... 2014
Marcia A. Zug The Real Impact of Adoptive Couple V. Baby Girl: the Existing Indian Family Doctrine Is Not Affirmed, but the Future of the Icwa's Placement Preferences Is Jeopardized 42 Capital University Law Review 327 (Spring, 2014) On July 3, 2013, Dusten Brown, his wife-Robin-and Brown's parents-Tommy and Alice Brown-filed actions to adopt Baby Veronica, the four-year-old girl at the heart of the United States Supreme Court's recent decision in Adoptive Couple v. Baby Girl. The Browns based their adoption petitions on the Indian preference provisions of the Indian Child... 2014
SGM (Retired) Gunther M. Nothnagel The Second Sgm John A. Nicolai Leadership Lecture 219 Military Law Review 247 (Spring, 2014) It is certainly a pleasure for me to be here today. You will have to pardon me; it is a bit of nostalgia for me to be here. I first arrived here so many years back, it is kind of hard to remember now--it was 1972 when Charlottesville--the outer end of Charlottesville is now where K-Mart is, if that tells you anything. It has grown. I mean, it is... 2014
Matthew L.M. Fletcher The Seminole Tribe and the Origins of Indian Gaming 9 FIU Law Review 255 (Spring 2014) The Seminole Tribe of Florida (Tribe) has played, perhaps, the most important role in the origins and development of Indian gaming in the United States of any single tribe. The Tribe opened the first tribally owned, high stakes bingo hall in 1979. The Tribe, in 1981, was involved in one of the earliest lower court decisions, which formed the... 2014
J. Matthew Martin The Supreme Court Erects a Fence Around Indian Gaming 39 Oklahoma City University Law Review 45 (Spring 2014) On June 18, 2012, the United States Supreme Court established an almost insurmountable boundary for American Indian tribes seeking to establish Indian gaming on lands newly taken into trust by the Secretary of the Interior. In Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, the Supreme Court allowed a private suit to proceed... 2014
Shawn L. Murphy The Supreme Court's Revitalization of the Dying "Existing Indian Family" Exception 46 McGeorge Law Review 629 (2014) C1-2Table of Contents I. Introduction. 630 II. Background: What is the Indian Child Welfare Act and the Existing Indian Family Exception?. 631 A. History of ICWA. 631 B. To Whom and When Does ICWA Apply?. 632 C. What Does ICWA Provide?. 633 1. ICWA as a Jurisdictional Statute. 633 2. ICWA Provides Special Protections for Indian Parents and... 2014
Renisa Mawani, Iza Hussin The Travels of Law: Indian Ocean Itineraries 32 Law and History Review 733 (November, 2014) I believe that no country ever stood so much in need of a code of laws as India; and I believe also that there never was a country in which the want might so easily be supplied. I said that there were many points of analogy between the state of that country after the fall of the Mogul power, and the state of Europe after the fall of the Roman... 2014
Rohit De, Department of History, Yale University Tools of Justice: Non-discrimination and the Indian Constitution. By Kalpana Kannabiran. New Delhi: Routledge, 2012. 505 Pp. Rs 995, $105.00 Cloth 48 Law and Society Review 687 (September, 2014) The Indian Constitution promulgated in 1950 created, in the words of its chief draftsman Dr Ambedkar, a life of contradictions. It ushered in universal adult suffrage and a judicially enforced bill of rights to a population that was marked by stark inequalities of caste, gender, religion, and class. The constitutional values were not part of the... 2014
Lindsay Short Tradition Versus Power: When Indigenous Customs and State Laws Conflict 15 Chicago Journal of International Law 376 (Summer 2014) Indigenous societies have received increasing attention in recent years. Notably, scholars and the international law community have gradually, but increasingly, recognized indigenous groups' autonomy in past decades. Against this backdrop, indigenous groups have largely continued to maintain their own distinct customs and practices, including their... 2014
Matthew L.M. Fletcher , Kathryn E. Fort , Dr. Nicholas J. Reo Tribal Disruption and Indian Claims 112 Michigan Law Review First Impressions 65 (January, 2014) Legal claims are inherently disruptive. Plaintiffs' suits invariably seek to unsettle the status quo. On occasion, the remedies to legal claims can be so disruptive--that is, impossible to enforce or implement in a fair and equitable manner--that courts simply will not issue them. In the area of federal Indian law, American Indian tribal claims not... 2014
Jeanette Wolfley Tribal Environmental Programs: Providing Meaningful Involvement and Fair Treatment 29 Journal of Environmental Law & Litigation 389 (2014) Introduction. 390 I. Background of Tribal Environmental Authority. 393 II. Policies Supporting Meaningful Involvement and Fair Treatment. 399 A. Providing Good Governance. 400 B. Respecting the Interests of Community Members. 402 C. Protecting and Promoting Tribal Sovereignty. 405 III. Defining Meaningful Involvement and Fair Treatment . 409 A.... 2014
Gregory S. Arnold Tribal Law and Order Act and Violence Against Women Act: Enhanced Recognition of Inherent Tribal Sovereignty Creates Greater Need for Criminal Defense Counsel in Indian Country 61-FEB Federal Lawyer Law. 4 (January/February, 2014) Starting with the Indian Civil Rights Act of 1968 (the ICRA), Native American Indian tribes were limited in sentencing Indian criminal defendants to a maximum of only six months in jail and / or a $500 fine, including murder and other violent felonies, and had no criminal authority over non-Indians. This was first strengthened by amendment in... 2014
Joseph G.E. Gousse Waiting for Gluskabe: an Examination of Maine's Colonialist Legacy Suffered by Native American Tribes under the Maine Indian Claims Settlement Act of 1980 66 Maine Law Review 535 (2014) I. Introduction II. A Brief History of Colonial, Federal, and State Intercourse with Native Americans in the United States, Massachusetts, and Post-1820 Maine A. European Conquest and the American Non-Intercourse Act of 1790 B. A Brief History of Tribal Land Transactions in Massachusetts and Maine C. Road to Restitution?: Paving the Path for the... 2014
Marc Galanter , Manuel A. Gómez Waiting for Mendeleev: the Tangle of Indigenous Law 10 FIU Law Review Rev. 1 (Fall 2014) [On learning about Mendeleev's table] For the first time I saw a medley of haphazard facts fall into line and order. All the jumbles and recipes and hotchpotch of the inorganic chemistry of my boyhood seemed to fit themselves into the scheme before my eyes - as though one were standing beside a jungle and it suddenly transformed itself into a... 2014
Helaman “Helo” Hancock Welcome from the Chair of the Indian Law Section 57-OCT Advocate 26 (October, 2014) Treat all men alike . give them all the same law. Give them all an even chance to live and grow. You might as well expect the rivers to run backward as that any man who is born a free man should be contented when penned up and denied liberty to go where he pleases. We only ask an even chance to live as other men live. We ask to be recognized as... 2014
Jean Dennison , University of North Carolina, Chapel Hill Whitewashing Indigenous Oklahoma and Chicano Arizona: 21st-century Legal Mechanisms of Settlement 37 PoLAR: Political and Legal Anthropology Review 162 (May, 2014) This article interrogates the various tactics settler colonial legal systems use in establishing and entrenching authority over territories. By comparing a recent Osage Nation reservation court case with Arizona House Bill (HB) 2281, enacted into law as Ariz. Rev. Stats. § 15-112, which has been used to ban Mexican American/Raza Studies (MARS) from... 2014
SANFORD LEVINSON Who Counts? "Sez Who?" 58 Saint Louis University Law Journal 937 (Summer 2014) When Professor Joel Goldstein called to offer me the opportunity to deliver the 2013 Childress Lecture, I was, of course, immensely flattered, albeit immediately intimidated when he added that it would include the participation as well of a daunting group of commentators. That did not, of course, prevent me from accepting, though it did lead to... 2014
Stacy L. Leeds , Erin S. Shirl Whose Sovereignty? Tribal Citizenship, Federal Indian Law, and Globalization 46 Arizona State Law Journal 89 (Spring 2014) This Article is adapted from a speech given by Stacy Leeds at the Sixth Annual Canby Lecture Series held at Arizona State University's Sandra Day O'Connor College of Law. Stacy Leeds is the Dean of the University of Arkansas Law School, which recently launched a new Indigenous Food and Agriculture Initiative to complement their long-standing LL.M.... 2014
Julie Sobotta Kane Why Applying the Indian Child Welfare Act Is Worth the Hassle 57-OCT Advocate 28 (October, 2014) After practicing for many years in the area of Indian Law, I often heard complaints about the application of the Indian Child Welfare Act (ICWA) in child protection cases. The Act requires state courts to notify Indian Tribes when members of their tribes are subjects of a proceeding. It also requires higher standards of proof when placing children... 2014
Zachary Diionno , Sommerset Wong Winner, Best Appellate Brief in the 2013 Native American Law Student Association Moot Court Competition 38 American Indian Law Review 305 (2013-2014) I. Does the Cush-Hook Nation, a tribe in existence since time immemorial, maintain aboriginal title to their ancestral lands situated in modern-day Kelley Point Park when that title has never been extinguished? II. Does Oregon have criminal jurisdiction to regulate the use of, and to protect, the culturally and religiously significant tribal... 2014
Matthew L.M. Fletcher (Re)solving the Tribal No-forum Conundrum: Michigan V. Bay Mills Indian Community 123 Yale Law Journal Online 311 (11/18/2013) Michigan v. Bay Mills Indian Community, a dispute over a controversial off-reservation Indian casino, is the latest opportunity for the Supreme Court to address the doctrine of tribal sovereign immunity. The Court could hand Michigan a big win by broadly abrogating tribal immunity, and in turn wreak havoc on modern tribal governance. Alternately,... 2013
Hope M. Babcock [This] I Know from My Grandfather: the Battle for Admissibility of Indigenous Oral History as Proof of Tribal Land Claims 37 American Indian Law Review 19 (2012-2013) A major obstacle indigenous land claimants must face is the application of federal evidentiary rules, like the hearsay doctrine, which block the use of oral history to establish legal claims. It is often oral history and stories that tribes rely upon as evidence to support their claims, reducing substantially the likelihood of a tribe prevailing.... 2013
Kelsey Vujnich A Brief Overview of the Indian Child Welfare Act, State Court Responses, and Actions Taken in the past Decade to Improve Implementation Outcomes 26 Journal of the American Academy of Matrimonial Lawyers 183 (2013) Since the Indian Child Welfare Act (hereafter ICWA) was adopted in 1978 by the U.S. Congress, various courts have struggled with its application, at times coming to different conclusions regarding various terms in the statute and producing different outcomes by state. Differences among state court decisions range from philosophical differences as... 2013
David E. Wilkins A Most Grievous Display of Behavior: Self-decimation in Indian Country 2013 Michigan State Law Review 325 (2013) Introduction. 325 I. Deciding Who Belongs and on What Grounds. 327 II. The Dismembering Begins. 330 III. Where Do We Go from Here?. 334 Conclusion. 338 Vine Deloria, Jr., the greatest indigenous philosopher of his day, wrote Custer Died for Your Sins: An Indian Manifesto in 1969. It was a spirited polemic that both galvanized and inspired Native... 2013
Carole Goldberg A Native Vision of Justice 111 Michigan Law Review 835 (April, 2013) The Surrounded. By D'Arcy McNickle. New York: Dodd Mead. 1936. (University of New Mexico Press 1978 ed.). Pp. 297. $23.95. That's the way it goes now; the old law is not used and nobody cares about the new. Old Modeste The Surrounded (p. 207) He could tell himself, as he stood there, not only listening but seeing, that of all joys, there was none... 2013
Adam R. Chang A Non-native Approach to Decolonizing Settler Colonialism Within Hawaii's Lgbt Community 14 Asian-Pacific Law and Policy Journal 132 (2013) Introduction. 132 I. Civil Unions: The Marketing of Marriage Equality and Potential Harm to Native Hawaiian Culture. 133 II. Don't Ask, Don't Tell: How the LGBT Movement Can Address the U.S. Military Presence in Hawai'i. 139 III. Aikne and Mh: Distinct Sexual Identities in Hawai'i. 142 Conclusion. 144 2013
Rebecca Tsosie A Philosophy of Hope and a Landscape of Principle: the Legacy of David Getches's Federal Indian Law Scholarship 84 University of Colorado Law Review 155 (Winter, 2013) In this essay, Professor Tsosie documents two important aspects of David Getches's work in the field of federal Indian law. First, Professor Tsosie observes that David Getches was a strong proponent of guiding principles and a consistent structure in the law. Consequently, he was one of the first scholars to observe the ways in which the... 2013
Benjamin A. Kahn A Place Called Home: Native Sovereignty Through Statehood and Political Participation 53 Natural Resources Journal J. 1 (Spring 2013) This article addresses the efforts of American Indians and the Maori in New Zealand to resolve natural resource disputes and preserve sovereignty through statehood movements and other forms of political participation. This is the third installment in a series published by Stanford University and the University of California Davis on the efforts of... 2013
Spencer Sloan Accommodation and Rectification: a Dual Approach to Indigenous Peoples in International Law 51 Columbia Journal of Transnational Law 739 (2013) This Note seeks to demonstrate that the goals of multiculturalism and historical injustice rectification are closely interrelated, and that a dual analysis of these two fields can aid international law in resolving claims by indigenous peoples for both historical injustice rectification and multiculturalist accommodation. Using a multiculturalist... 2013
by Barbara L. Jones, Minnesota Lawyer, Minneapolis, MN Adoptive Couple 40 No.7 Preview of United States Supreme Court Cases 291 (4/15/2013) The birth parents of Baby Girl were unmarried. Mother decided to put the child up for adoption without consulting Father. Baby Girl was placed with an adoptive family in South Carolina, where she lived for about two years. Father is a Cherokee Indian, but for reasons that are disputed, the tribe and social workers initially were unaware of this.... 2013
Marcia Zug Adoptive Couple V. Baby Girl: Two-and-a-half Ways to Destroy Indian Law 111 Michigan Law Review First Impressions 46 (April, 2013) In December 2011, Judge Malphrus of the South Carolina family court ordered Matt and Melanie Capobianco to relinquish custody of Veronica, their two-year-old, adopted daughter, to her biological father, Dusten Brown. A federal statute known as the Indian Child Welfare Act (ICWA) mandated Veronica's return. However, the court's decision to return... 2013
Miranda Strong Alaska National Interest Lands Conservation Act Compliance & Nonsubsistence Areas: How Can Alaska Thaw out Rural & Alaska Native Subsistence Rights? 30 Alaska Law Review 71 (June, 2013) The Alaska Constitution prevents the Alaska National Interest Lands Conservation Act's (ANILCA) rural subsistence priority from being enforced. The Federal Government currently manages subsistence on federal lands in Alaska and Alaska can only resume management if it becomes ANILCA compliant. The current federal management system does not... 2013
Catherine Lynn Allison Alaska Native Corporations: Reclaiming the Namesake; Effectuating the Purpose 42 Public Contract Law Journal 869 (Summer, 2013) I. Introduction. 870 II. Brief History of ANCs from Birth to Today. 871 A. Alaska Native Claims Settlement Act of 1971. 872 1. History and Background of the Act. 872 2. Alaska Native Corporations Are Established. 872 3. Alaska Native Social Improvement Fueled the Passage of the Settlement Act and Remains Important Today. 873 B. ANCs Initially Fail... 2013
Troy A. Eid Alaska Natives and American Laws, by David S. Case and David A. Voluck (3d Ed. 2012) 30 Alaska Law Review 223 (December, 2013) Alaska Natives and American Laws -- Case-Voluck, for short--has been called the Alaskan equivalent of the late Felix Cohen's Handbook of Federal Indian Law (Cohen's Handbook), the Bible of the profession. Cohen's Handbook, a massive work first published in 1941 and revised in recent years by more than three dozen Indian law scholars, itself... 2013
Gregory Gagnon American Indian Law: a Discourse on Chthonic Law 89 North Dakota Law Review 29 (2013) This discourse on Chthonic Law, a theory propounded by H. Patrick Glenn among others, is the occasion for describing advantages and disadvantages of the introduction of customary American Indian law (Chthonic law) into the courtroom. Remarks on the theory, considerations of its merits and weaknesses and illustrations from American Indian societies... 2013
Matthew L.M. Fletcher American Indian Legal Scholarship and the Courts: Heeding Frickey's Call 4 California Law Review Circuit Circuit 1 (March, 2013) American Indian legal scholarship, which rose from virtual nonexistence in the 1950s, appears to have been very influential on the courts during the 1960s and 1970s. Every decade since the 1960s has seen a dramatic increase in the number of law review articles on the subject. Courts cited to a substantial number of the American Indian law articles... 2013
M. Christian Clark Analytical Research Guide to Federal Indian Tax Law 105 Law Library Journal 505 (Fall, 2013) As tribal economic growth impacts non-Indian interests, the need for Indian tax law research inevitably increases. Federal Indian law's jurisprudential nature and constitutional ambiguity create unique challenges for tax professionals. This article is a guide to Indian tax law for both the legal academy and tax practitioners. C1-2Contents... 2013
Virginia J. Morrison Ancient Culture and Contemporary Art 5 No.3 Landslide 33 (January/February, 2013) Australian Aboriginal art is one of the longest continuing art traditions in the world. From ancient rock art to the contemporary Indigenous art movement that has been recognized around the world, it speaks of a connection to land and culture. As Australia has moved gradually toward reconciliation between Indigenous and non-Indigenous Australians,... 2013
Bryan Neihart Awas Tingni V. Nicaragua Reconsidered: Grounding Indigenous Peoples' Land Rights in Religious Freedom 42 Denver Journal of International Law and Policy 77 (Fall 2013) The Inter-American Court on Human Rights (IACHR) decided the Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua (Awas Tingni) over twelve years ago. Since then, the decision has been the subject of many notes and articles focusing primarily on the decision's impact on the collective land and property rights of indigenous peoples.... 2013
Gabrielle Lynch, University of Warwick Being Maasai, Becoming Indigenous: Postcolonial Politics in a Neoliberal World Dorothy Hodgson (Bloomington: Indiana University Press, 2011) 36 PoLAR: Political and Legal Anthropology Review 367 (November, 2013) In this excellent book, Hodgson examines how and why, in the late twentieth and early twenty first centuries, Maasai activists in Tanzania positioned and then repositioned themselves as indigenous and then as pastoralists in their struggles for representation, recognition, resources, and rights. More specifically, Hodgson analyzes how these... 2013
Niels Nagelhus Schia , Norwegian Institute of International Affairs (NUPI) Being Part of the Parade - "Going Native" in the United Nations Security Council 36 PoLAR: Political and Legal Anthropology Review 138 (May, 2013) How do small states behave once they have a seat at the table? In this article, I describe how one small state--Norway--operated when it was a member of the United Nations Security Council (UNSC) in 2001-02. From my anthropological fieldwork in this period, I present a number of arguments. The first one is that, substantively, Norwegian diplomats... 2013
Claire Chiamulera Best Practices for Native American and All Families 32 No.8 Child Law Practice 124 (August, 2013) Every child benefits from connections to their communities, culture, and heritage. These connections give them a sense of place and belonging. Children who enter the child welfare system risk losing these connections. American Indian children historically have faced a greater risk of lost connections, a trend that is changing but requires family... 2013
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