Larry Catá Backer , Bret Stancil Beyond Colonization--globalization and the Establishment of Programs of U.s. Legal Education Abroad by Indigenous Institutions 5 Drexel Law Review 317 (Spring 2013) This Article will look at globalization in the context of higher education and, in particular, higher legal education. The objective will be to think about the ways in which non-U.S.-based law schools are now offering American-style legal education to supply the U.S. legal market or produce U.S.-trained lawyers in the home-state market or for other... 2013
Josephine M. Balzac Cafta-dr's Citizen Submission Process: Is it Protecting the Indigenous Peoples Rights and Promoting the Three Pillars of Sustainable Development? 11 Loyola University Chicago International Law Review 11 (Fall/Winter 2013) I. Introduction. 12 II. The Human Rights of Indigenous People. 16 A. Inter-American Decisions on Traditional Indegienous Lands. 17 B. Indigenous Rights Enumerated in the Declaration. 18 III. Public Engagement, Sustainable Development, and Procedural Justice in Free Trade Agreements Key. 22 A. The Concept and Achievement of Sustainable Development.... 2013
R. Matthew Short Can the Tiger Sit down with the Dragon? An Assessment of Chinese and Indian Antitrust Laws 41 Georgia Journal of International and Comparative Law 831 (Spring, 2013) I. Introduction. 832 II. Background. 833 A. China's Legislative History Regarding Antitrust Law. 834 B. India's Legislative History Regarding Antitrust Law. 835 C. Economic Goals of Antitrust Law Generally. 837 D. China's Economic Goals Regarding Antitrust Law. 837 E. India's Economic Goals Regarding Antitrust Law. 839 III. Merger Review in China... 2013
Lawana L. Bryant, Katherine E. Lewis, Maia Puryear, Alyssa Reiner Caught in the Middle 5 No.4 Landslide 26 (March/April, 2013) For centuries, museums and cultural institutions (collec tively institutions) across North America have purchased, collected, catalogued, displayed, and exhibited the artwork, sacred objects, and, particularly, human remains of indigenous peoples from regions across the continent with minimal regard to the cultural importance of those items and... 2013
  Chaco Nation of the Chaco Indian Reservation, Depaulia, Plaintiff-appellant, V. Edward Williamson, Defendant-appellee 23 DePaul Journal of Art, Technology & Intellectual Property Law 525 (Spring, 2013) Clark, Circuit Judge. The Chaco Nation of the Chaco Indian Reservation (Chaco Nation), located in DePaulia, appeals the judgment of the United States District Court for the Northern District of DePaulia. The district court held, first, that the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. §§ 3001 et seq., does not vest... 2013
  Chapter 19 • Native American Resources 2013 ABA Environment, Energy, and Resources Law: The Year in Review 192 (2013) On June 25, 2013, the Supreme Court ruled in a 5-4 decision in Adoptive Couple v. Baby Girl --popularly known as the Baby Veronica case--that the Indian Child Welfare Act (ICWA) does not apply to a biological parent who has never had custody of a child, despite the fact that ICWA explicitly defines parent to include any biological parent,... 2013
Daniel C.K. Chow China's Indigenous Innovation Policies and the World Trade Organization 34 Northwestern Journal of International Law and Business 81 (Fall 2013) China's Indigenous Innovation Policies are a web of policies, regulations, and strategies that are designed to develop an indigenous capacity to create innovation and advanced technology as part of China's larger strategy to ascend to the top ranks of the world's industrialized nations. As part of these policies, China has implemented... 2013
Rebecca Tsosie Climate Change and Indigenous Peoples: Comparative Models of Sovereignty 26 Tulane Environmental Law Journal 239 (Summer 2013) I. Understanding Indigenous Rights: The Domains of Political and Cultural Sovereignty. 241 II. The Framework for Climate Justice Within Domestic U.S. Law. 246 III. International Law and Climate Justice. 250 IV. Indigenous Peoples and Environmental Self-Determination. 253 V. Conclusion. 256 2013
Judith V. Royster Climate Change and Tribal Water Rights: Removing Barriers to Adaptation Strategies 26 Tulane Environmental Law Journal 197 (Summer 2013) I. Introduction. 197 II. State General Stream Adjudications and Antiadaptive Decisions. 201 A. Restrictions as to Measure of Quantification. 203 B. Restrictions as to Water Sources. 207 C. Restrictions as to Use. 210 D. Bringing Federal Law back into Adjudications. 212 III. Restrictions on Tribal Water Codes. 214 IV. Restrictions on Water... 2013
Sumudu Atapattu Climate Change, Indigenous Peoples and the Arctic: the Changing Horizon of International Law 22 Michigan State International Law Review 377 (2013) Introduction. 377 I. The Impact of Climate Change. 379 II. Indigenous Peoples and the Arctic. 382 A. The Inuit Petition. 384 III. Indigenous Communities and the Relevance of Free, Prior & Informed Consent. 387 A. FPIC-What Does It Mean?. 389 B. Case Law. 393 IV. Using the Global Commons Framework. 398 A. Governance of the Arctic. 398 B. Global... 2013
Tony Penikett , Adam Goldenberg Closing the Citizenship Gap in Canada's North: Indigenous Rights, Arctic Sovereignty, and Devolution in Nunavut 22 Michigan State International Law Review 23 (2013) When Canada signed the Nunavut Land Claims Agreement in 1993, it committed to create a new territory, Nunavut, as an Inuit homeland in the Canadian Eastern Arctic. Parliament fulfilled this promise with the passage of the Nunavut Act, and the new territory came into existence on April 1, 1999. Still, the Government of Nunavut remains a creature of... 2013
Randall S. Abate , Elizabeth Ann Kronk Commonality among Unique Indigenous Communities: an Introduction to Climate Change and its Impacts on Indigenous Peoples 26 Tulane Environmental Law Journal 179 (Summer 2013) I. Introduction. 179 II. Commonality of Experience. 181 III. Legal Responses at the Domestic, Regional, and International Levels. 191 IV. Conclusion. 195 2013
  Conference Transcript: Heeding Frickey's Call: Doing Justice in Indian Country 37 American Indian Law Review 347 (2012-2013) HEEDING PHIL FRICKEY'S CALL: THE ISSUES IN INDIAN COUNTRY. 348 Matthew L.M. Fletcher, Professor of Law and Director of the Indigenous Law & Policy Center, Michigan State University College of Law. 348 Joseph Heath, Attorney at Law, Onondaga Nation General Counsel. 351 Pat Sekaquaptewa, Executive Director, Nakwatsvewat Institute. 358 ENVIRONMENTAL... 2013
Mark R. Carter, JD, PhD Congress' Encroachment on the President's Power in Indian Law and its Effect on Executive-order Reservations 11 Seattle Journal for Social Justice 1193 (Spring, 2013) I. The Executive-Order Reservation Constitutional Problem II. Separation of Powers Doctrine A. Mainstream Separation of Powers Between the President and Congress 1. The President's Power a) Foreien Power (1) Treaties Ratified by the Senate (2) Executive Agreements Without Senate Ratification (3) Recognizing Governments (4) Abrogating Treaties b)... 2013
Samantha A. Moppett Control-alt-incomplete? 12 Chicago-Kent Journal of Intellectual Property 77 (Spring, 2013) Law students matriculating today were born digital. As digital natives, they have never known a world without digital technology, andtherefore, they think and process information differently than previous generations. Although law school student bodies have changed, law school assessment methods have remained static, with students nearly... 2013
  Corporation Owned by Indian Tribe Was Not Tax-exempt 91 Practical Tax Strategies 01 (July, 2013) The Tax Court n Uniband, Inc., 140 TC No. 13 ruled that a state-chartered corporation owned by an Indian tribe was not exempt from corporate income tax. According to the court, the corporation was a separate and distinct taxable entity from the tribe. The tribe's immunity from tax did not extend to the corporation, which also was not entitled to... 2013
Teri Māhealani Wright Demolition of Native Rights and Self Determination: Act 55's Devastating Impact Through the Development of Hawaii's Public Lands 35 University of Hawaii Law Review 297 (Winter, 2013) I. Introduction. 298 II. Background and Context. 302 A. The Cultural and Historical Significance of Land to Native Hawaiians. 302 1. Native Hawaiian relationship to land. 302 2. Ahupua'a land tenure system. 303 B. The Historical and Legal Background of Land Management in Hawai'i. 304 1. The first occurrence of privatization in Hawai'i: the Mahele... 2013
Karen Gray Young Do We Have it Right this Time? An Analysis of the Accomplishments and Shortcomings of Washington's Indian Child Welfare Act 11 Seattle Journal for Social Justice 1229 (Spring, 2013) Jessie Scheibner's eyes cloud with tears and her voice trembles as she talks about the day, almost 70 years ago, when a stranger's car pulled up to her parents' home on the Port Gamble S'Klallam Reservation and took her and her two sisters away. The memories of that car ride when she was three and the years spent in one foster home after another... 2013
Jeana Petillo Domestic Violence in Indian Country: Improving the Federal Government's Response to this Grave Epidemic 45 Connecticut Law Review 1841 (July, 2013) The pervasiveness of domestic violence against Native American women in Indian country is alarming. Pursuant to the doctrine of trust responsibility, the federal government has recently responded to the epidemic of domestic violence in Indian country by passing three pieces of legislation-18 U.S.C. § 117, the Tribal Law and Order Act of 2010, and... 2013
Kathryn E. Kovacs Eagles, Indian Tribes, and the Free Exercise of Religion 47 Loyola of Los Angeles Law Review 53 (Fall, 2013) The Bald and Golden Eagle Protection Act prohibits the taking or possession of eagles and eagle parts. Recognizing the centrality of eagles in many Native American religions, Congress carved out an exception to that prohibition for the religious purposes of Indian tribes. The problems with the administration of that exception are reaching crisis... 2013
Cheng-Yu Hou Echoing the Minority Voices in False Advertising: the Indian Arts and Crafts Act and its Protections Beyond the Lanham Act 7 Southern Region Black Law Students Association Law Journal 113 (Spring 2013) False advertising, as the legal community understands it, reflects upon Section 43 of the Lanham Act. Congress, however, is quite limited in its scope of thinking with its incorporation of such false advertising provision in its 1988 revision of the Lanham Act. As stated in its legislative history, Congress explained that the main reason for such... 2013
  Edward Williamson, Petitioner V. Chaco Nation of the Chaco Indian Reservation, Depaulia Respondent 23 DePaul Journal of Art, Technology & Intellectual Property Law 547 (Spring, 2013) 1. Must human remains bear some relationship to a presently existing tribe, people, or culture in order to be Native American under the Native American Graves Protection and Repatriation Act (NAGPRA) and therefore be subject to its ownership provisions? 2. Does transferring ownership of objects found on private property to an Indian tribe under... 2013
Sarah Jane Gillett , Casey Ross-Petherick , Shareholder, Hall Estill, Of Counsel, Hall Estill Effectively Representing Indian Tribes in Tribal-state Law Matters 2013 Aspatore 2136510 (April, 2013) Tribal issues run the gamut of legal practice. Because tribes are sovereign governments, their strategies naturally flow from the needs of their citizens. As federal American Indian policy is shaped, particular issues become especially relevant and create an ebb and flow that covers a diverse range of legal issues. One of the most universal issues... 2013
Thais-Lyn Trayer Elementary Unfairness: Federal Recidivism Statutes and the Gap in Indigent American Indian Defendants' Sixth Amendment Right to Counsel 63 American University Law Review 219 (October, 2013) Indigent American Indian defendants suffer from a gap in federal laws that denies them full Sixth Amendment right-to-counsel protections. Indian defendants are not automatically guaranteed representation by a lawyer in tribal court. Constitutional difficulties arise when these uncounseled convictions are later used to support prosecution of repeat... 2013
Sean J. Wright Elusive Goal, Enduring Benefits: Regulation of Air Quality in Indian Country as a Tool to Promote Small Business Development 8 Ohio State Entrepreneurial Business Law Journal 25 (2013) The Clean Air Act (CAA) Amendments of 1990 represented sweeping changes to the way the federal government regulates air quality. The Environmental Protection Agency (EPA) was tasked with implementing the regulations to effectuate these sweeping changes. But, for nearly two decades the EPA has overlooked developing regulations for an important area... 2013
Ryan D. Dreveskracht Enfranchising Native Americans after Shelby County V. Holder: Congress's Duty to Act 70 National Lawyers Guild Review 193 (Winter 2013) The U.S. Constitution does not prescribe requirements for the right to take part in elections. That right was left to the states to implement and regulate--and, for much of our history, they generally limited the franchise to white male property owners, who were citizens of a certain age, occasionally of a specific religious faith. Most nonwhites... 2013
Ziwei Hu Equity's New Frontier: Receiverships in Indian Country 101 California Law Review 1387 (October, 2013) Southern California's Coachella Valley is one of the poorest regions in the country. Its location in Riverside County--which is within close proximity to some of the nation's wealthiest citizens and also the U.S.-Mexico border--along with the county's dependence on the agriculture industry has contributed to a significant demand for low-wage farm... 2013
Jenny Small Financing Native Nations: Access to Capital Markets 32 Review of Banking and Financial Law 463 (Spring, 2013) [E]very individual, therefore, endeavours as much as he can both to employ his capital in the support of domestic industry, and so to direct that industry that its produce may be of the greatest value .. He generally, indeed, neither intends to promote the public interest, nor knows how much he is promoting it .. [H]e intends only his own security... 2013
Stephan A. Hoover Forcing the Tribe to Bet on the House the Limited Options and Risks to the Tribe When Indian Gaming Operations Seek Bankruptcy Relief 49 California Western Law Review 269 (Spring 2013) Introduction. 270 I. Tribal Sovereignty, Gaming, and the Bankruptcy Code. 272 A. A History of Indian Sovereignty and Gaming Law. 272 B. Bankruptcy Relief in the United States. 277 II. The Constraints on Eligibility for Indian Gaming Operations Seeking Bankruptcy Relief. 279 A. Eligibility in a Case under The Bankruptcy Code. 279 B. The Indian... 2013
Paul Van Olson Fox-hunting the Conscience of the King into a Shallow Grave: Sovereign Immunity and Discovery as Applied to Indian Tribes in Alltel Communications, L.l.c. V. Dejordy and its Implications for Discovery Practice 58 South Dakota Law Review 405 (2013) In Alltel Communications, L.L.C., v. DeJordy, the Eighth Circuit Court of Appeals quashed third-party subpoenas issued to tribal officials of the Oglala Nation of the Pine Ridge Indian Reservation. The Eighth Circuit found tribal immunity from suit provided a basis to quash. In doing so, the Eighth Circuit confronted the concept of sovereign... 2013
Mitchell Davis Fractured Focus: Tribal Energy Development and the Regulatory Contest over Hydraulic Fracturing in Indian Country 4 Washington and Lee Journal of Energy, Climate, and the Environment 305 (2013) C1-2Table of Contents I. Introduction. 305 II. Hydraulic Fracturing: Technique, Geology, and Unintended Consequences. 308 III. Good Fences: Neighbor States and their Regulations. 313 IV. Reservation Jurisdiction, Federal Regulation, and the Trust Relationship. 323 V. Regulations and Remedies: Tribal and Individual Influence of Fracking. 340 VI.... 2013
Thomas W. Fredericks Freeing Indian Energy Development from the Grips of Cotton: Advancing Energy Independence for Tribal Nations 60-APR Federal Lawyer 57 (April, 2013) With the exception of the IMLA, the statutes discussed below are the basis for the assertion that state taxation of Indian oil and gas is pre-empted by federal law and policy. The first comprehensive legislation to vest the Secretary of the Interior with the duty of leasing Indian minerals was the Indian Mineral Leasing Act of 1938 (IMLA). The IMLA... 2013
Maria Noel Leoni Zardo Gender Equality and Indigenous Peoples' Right to Self-determination and Culture 28 American University International Law Review 1053 (2013) I. INTRODUCTION. 1053 II. INDIGENOUS PEOPLES' RIGHT TO SELF-DETERMINATION AND THE COLLECTIVE RIGHT TO CULTURE. 1059 A. The Importance of Recognizing Collective Rights of Indigenous Peoples. 1059 B. The Scope of the Collective Rights to Self-Determination and Culture. 1068 III. ADDRESSING GENDER INEQUALITY WITHIN INDIGENOUS COMMUNITIES. 1073 IV.... 2013
G.M. Filisko Global Settlements 99-OCT ABA Journal 25 (October, 2013) Meditation in India? Om, big. Mediation in India? Um, not as big. That, however, is changing, thanks to Victor Schachter, a labor and employment partner at Fenwick & West in Mountain View, Calif. Schachter set up the first court-annexed mediation centers in India, and he plans to follow suit in additional countries through his just-launched... 2013
Breann Swann Nu'uhiwa Government of the People, by the People, for the People: Cultural Sovereignty, Civil Rights, and Good Native Hawaiian Governance 14 Asian-Pacific Law and Policy Journal 57 (2013) I.. Introduction 58 II.. Cultural Sovereignty 62 III.. Civil Rights in Native Hawaiian History and Tradition 65 A. Civil Rights Prior to Contact 66 B. The Displacement of Kuleana 69 C. The Native Hawaiian Response 73 D. The Persistence of Traditional Values in Contemporary Native Hawaiian Society 75 IV.. Federal Expectations Regarding Native... 2013
Donna S. Salcedo Hawaiian Land Disputes: How the Uncertainty of the Native Hawaiian Indigenous Tribal Status Exacerbates the Need for Mediation 14 Cardozo Journal of Conflict Resolution 557 (Winter 2013) Many people see the Hawaiian Islands as a paradise in the Pacific Ocean. However, most are unaware that history has left an unpleasant and permanent scar on the original inhabitants of the islands, the Native Hawaiians. It is often forgotten that the islands were once ruled by its monarchy. In fact, the Hawaiian Kingdom was not overthrown until... 2013
Benjamin Thomas Greer Hiding Behind Tribal Sovereignty: Rooting out Human Trafficking in Indian Country 16 Journal of Gender, Race and Justice 453 (Spring 2013) The white man's police have protected us only as well as the feathers of a bird protect it from the frosts of winter. Crowfoot, Blackfeet Chief Future generations will not excuse those who turn a blind eye to [human trafficking]. United States Secretary of State, Condoleezza Rice Native Americans are a profoundly strong and proud, however insular,... 2013
Vinita B. Andrapalliyal History Repeats Itself: Parallels Between Current-day Threats to Immigrant Parental Rights and Native American Parental Rights in the Twentieth Century 8 University of Massachusetts Law Review 562 (Spring, 2013) Immigrant parents are currently burdened with unique risks to their parental rights, risks that bear little relation to their ability to care for their children. Recent developments in family and immigration law, historical cultural prejudices against non-Western parenting traditions, and poor immigrants' limited access to the U.S. legal system are... 2013
Ryan D. Dreveskracht House Republicans Add Insult to Native Women's Injury 3 University of Miami Race & Social Justice Law Review Rev. 1 (2013) Introduction. 1 Background and Context. 2 What's the Big Deal? It Isn't That Bad.. 12 Constitutionality and Supreme Court Review. 21 Conclusion. 27 2013
Rebecca Cruz Guiao How Tribal Water Rights Are Won in the West: Three Case Studies from the Northwest 37 American Indian Law Review 283 (2012-2013) The Klamath River Basin controversy in Oregon and California represents complex legal, social, economic, and environmental issues involving a myriad of interested parties from tribal, federal, state, local, and public interest organizations. An apparent end to the controversy came on February 18, 2010, when over fifty organizations signed the... 2013
Paul Finkelman I Could Not Afford to Hang Men for Votes. Lincoln the Lawyer, Humanitarian Concerns, and the Dakota Pardons 39 William Mitchell Law Review 405 (2013) I. Political Considerations and the Pardon Issue. 409 II. What We Call the Conflict, and Why That Matters. 414 III. What Caused the Conflict?. 419 IV. The Politics of the Conflict. 422 V. The Trials. 424 VI. The Administration and the Dakota Trials. 433 VII. Lieber, the Law of War, and the Dakota. 440 VIII. I Could Not Afford to Hang Men for... 2013
  Indian Canon Originalism 126 Harvard Law Review 1100 (February, 2013) Indian treaties are quasi-constitutional documents. So why not read them like constitutions? In fact, scholars of Indian law have urged federal judges to interpret Indian treaties in the same manner as [they do] constitutional provisions. But no scholar has ever explained how the principles of constitutional interpretation would actually apply... 2013
  Indian Child Welfare Act 40 No.8 Preview of United States Supreme Court Cases 376 (8/10/2013) Overview: 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... 2013
  Indian Child Welfare Act -- Termination of Parental Rights -- Adoptive Couple V. Baby Girl 127 Harvard Law Review 368 (November, 2013) In the decades leading up to 1978, large numbers of Indian families were broken up through forced adoption or foster-care placement of Indian children, usually in non-Indian homes. To stem this wholesale removal of Indian children, Congress enacted the Indian Child Welfare Act of 1978 (ICWA), which sets rigorous standards to govern state court... 2013
Matthew L.M. Fletcher Indian Courts and Fundamental Fairness: Indian Courts and the Future Revisited 84 University of Colorado Law Review 59 (Winter, 2013) This article comes out of the University of Colorado Law Review's symposium issue honoring the late Dean David H. Getches. It begins with Dean Getches's framework for analyzing Indian courts. I revisit Indian Courts and the Future, the 1978 report drafted by Dean Getches, and the historic context of the report. I compare the 1978 findings to the... 2013
J. Harold McClure Indian Intercompany Loans Litigation 24 Journal of International Taxation 60 (June, 2013) The Indian tax courts have wrestled with one legal issue and two economic issues regarding the extension of intercompany loans by Indian parent companies to their foreign affiliates. The decision by the Mumbai Bench of the Income Tax Appellate Tribunal (ITAT) in Tata Autocomp Systems Limited is the most recent Indian court case involving... 2013
J. Harold McClure Indian Transfer Pricing Cases: Good News for Well-articulated Tnmm Approaches 24 Journal of International Taxation 35 (March, 2013) When facts support a modest markup over operating expenses for the provision of services, and the transfer pricing report is well articulated, the Indian courts tend to respect intercompany pricing even if the Indian tax authorities attack it. Multinationals often establish foreign affiliates to perform services on behalf of the parent, with the... 2013
Oswaldo R. Ruiz-Chiriboga Indigenous Corporal Punishment in Ecuador and the Prohibition of Torture and Ill Treatment 28 American University International Law Review 975 (2013) I. INTRODUCTION. 976 II. LEGAL PLURALISM IN ECUADOR. 981 III. INTERNATIONAL INSTRUMENTS THAT PROTECT THE RIGHT TO MAINTAIN INDIGENOUS LAWS. 983 IV. TORTURE IN INTERNATIONAL AND ECUADORIAN LAW. 986 A. Torture and Culture. 990 1. The Changing Nature of Torture. 991 2. Lawful Sanctions. 995 a. Corporal Punishment. 996 b. Imprisonment. 1000 c. Death... 2013
Upasana Khatri Indigenous Peoples' Right to Free, Prior, and Informed Consent in the Context of State-sponsored Development: the New Standard Set by Sarayaku V. Ecuador and its Potential to Delegitimize the Belo Monte Dam 29 American University International Law Review 165 (2013) I. INTRODUCTION. 166 II. BACKGROUND. 168 A. The Belo Monte Hydroelectric Project. 168 1. The Development of the Controversial Dam. 168 2. Projected Impacts of the Belo Monte Dam. 173 B. The Right to Free, Prior, and Informed Consent and Its Legal Underpinnings. 176 1. The American Convention on Human Rights: Article 21 and Its Interpretive History.... 2013
Jacinta Ruru Indigenous Restitution in Settling Water Claims: the Developing Cultural and Commercial Redress Opportunities in Aotearoa, New Zealand 22 Pacific Rim Law & Policy Journal 311 (March, 2013) Water is important to all peoples, including indigenous peoples. In recent years, the government in Aotearoa, New Zealand has utilized various cultural redress-type legal mechanisms to recognize and revive the importance of water to the Maori people's identity, health, and wellbeing. These mechanisms create revolutionary modern... 2013
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