Author | Title | Citation | Summary | Year |
Jordan Gross |
Vawa 2013's Right to Appointed Counsel in Tribal Court Proceedings--a Rising Tide That Lifts All Boats or a Procedural Windfall for Non-indian Defendants? |
67 Case Western Reserve Law Review 379 (Winter 2016) |
C1-2Contents Introduction. 380 I. Federal Constitutional Right to Counsel at Public Expense. 383 A. Sixth Amendment Right to Counsel. 383 B. Actual v. Authorized Incarceration Trigger. 386 II. Making Sense of the Right--Why Does the Constitution Require Appointed Counsel for Poor People Charged with Misdemeanors Only When They are Actually... |
2016 |
Helo Hancock |
Welcome from the Chair of the Indian Law Section |
59-OCT Advocate 24 (October, 2016) |
On behalf of the Indian Law Section, I would like to welcome our fellow Idaho State Bar members to this month's edition of The Advocate. It is hard to believe that I have just completed my third year as Chair of the Indian Law Section. It has been a tremendous honor to work with the caliber of practitioners we have in our membership. I truly admire... |
2016 |
Asta Hill |
Western Australia's Remote Indigenous Communities: a Case Against Closures and a Call for New Governance |
109 AJIL Unbound 209 (July, 2015-May, 2016) |
In the late 1970s thousands of Indigenous Australians initiated a movement back to the ancestral lands they had been removed from during the assimilationist era. Less than 50 years since their return to country, Aboriginal people living in Western Australia's (WA) remote communities are again grappling with their impending redispossession. WA... |
2016 |
Monte Mills |
What Should Tribes Expect from Federal Regulations? The Bureau of Land Management's Fracking Rule and the Problems with Treating Indian and Federal Lands Identically |
37 Public Land & Resources Law Review Rev. 1 (2016) |
I. INTRODUCTION. 2 II. FRACKING: RISKS AND REGULATIONS. 6 A. What is fracking?. 6 B. Risks of Fracking. 7 C. State versus Federal Regulation. 10 III. ENERGY DEVELOPMENT IN INDIAN COUNTRY. 14 A. Trust Relationship. 14 B. Federal Oversight of Energy Development. 16 C. Tribal Regulation. 20 IV. THE BLM'S FRACKING RULE. 21 A. Initial Proposed Rule. 22... |
2016 |
Rebecca M. Webster |
What's the Status of Land on Indian Reservations? |
89-JAN Wisconsin Lawyer 24 (January, 2016) |
Within the area of federal Indian law, there are many different ways to characterize land on Indian reservations. For example, the term Indian country is often used for jurisdictional purposes. Indian country includes all the land within the boundaries of an Indian reservation, even land owned by nontribal members. In addition, the formation of... |
2016 |
Trevor Reed |
WHO OWNS OUR ANCESTORS' VOICES? TRIBAL CLAIMS TO PRE-1972 SOUND RECORDINGS |
40 Columbia Journal of Law & the Arts 275 (Winter 2016) |
Introduction. 275 Part I: Current Federal and Tribal Laws Governing Pre-1972 Sound Recordings. 278 A. Non-Copyright Federal Statutes. 279 B. Common Law Copyright. 282 C. Aboriginal Title Enforced by Common Law Doctrines. 284 Part II: Case Study: Collectors' Rights versus Tribal Rights. 287 A. Laura Boulton: The Music Hunter. 288 i. Application of... |
2016 |
Tabatha Abu El-Haj |
Wholly Native to the First Amendment: the Positive Liberty of Self-government |
164 University of Pennsylvania Law Review Online 241 (2016) |
The Supreme Court has unequivocally and repeatedly rejected as wholly foreign to the First Amendment any suggestion that legislatures can regulate electoral speech in order to foster political equality. The Court is not oblivious to the distorting effects on the political process of large financial contributions. Rather, its reluctance to accept... |
2016 |
Monica Haymond |
Who's in and Who's Out: Congressional Power over Individuals under the Indian Commerce Clause |
102 Virginia Law Review 1589 (October, 2016) |
INDIAN law sits in uneasy coexistence with modern race law. Preferential treatment for Native Americans, like the Bureau of Indian Affairs (BIA) policy to hire tribal members for federal jobs, is far removed from Chief Justice Roberts's pithy truism--The way to stop discrimination on the basis of race is to stop discriminating on the basis of... |
2016 |
Brooke E. Hamilton |
Why Indigenous Peoples' Property Rights Matter: Why the United Nations Declaration on the Rights of Indigenous Peoples May Be Used to Condemn Isis and the State of Iraq for Their Failure to Protect the Property Rights of Indigenous Peoples in the Nineveh |
41 American Indian Law Review 51 (2016) |
Crying and pleading for him to stop, a girl so small an adult's hands could circle her waist, experienced excruciating pain as an Islamic State (ISIS) fighter repeatedly raped her. Under ISIS' extremist interpretation of Islam, the militant informed the girl, only twelve in age, that for religious reasons he was allowed to rape an unbeliever.... |
2016 |
Steven J. Alagna |
Why Obergefell Should Not Impact American Indian Tribal Marriage Laws |
93 Washington University Law Review 1577 (2016) |
Catalyzed by Massachusetts's legalization of same-sex marriage in 2003, the debate surrounding marriage equality surged to the forefront of this country's public discourse, culminating in the Supreme Court's momentous decision in Obergefell v. Hodges. Prior to Obergefell, thirty-seven states and the District of Columbia had legalized same-sex... |
2016 |
Malcolm Lavoie |
Why Restrain Alienation of Indigenous Lands? |
49 U.B.C. Law Review 997 (November, 2016) |
Alienability is today seen as a basic incident of ownership, and is mostly taken for granted in common law jurisdictions. Inalienable forms of property are seen as exceptions in need of special justification. And yet, when it comes to Indigenous land rights, the position is precisely the reverse. The pervasive norm across common law settler... |
2016 |
Ashley Akers , Maureen Orth |
Winner, Best Appellate Brief in the 2016 Native American Law Student Association Moot Court Competition |
40 American Indian Law Review 365 (2015-2016) |
I. Whether Michiconsin retains Public Law 280 jurisdiction to keep peace across the state and enforce a criminal prohibition of cannabis against the M-A Nation given that the Secretary of the Interior never accepted retrocession pursuant to federal procedures. II. Whether The High End Hotel is entitled to sovereign immunity even though it serves... |
2016 |
Lawrence R. Baca |
40 Years of U.s. Supreme Court Indian Law Cases |
62-APR Federal Lawyer 18 (April, 2015) |
Much is often said by the media about how few Americans can name the justices of the U.S. Supreme Court. It is usually couched in terms of more people can name the seven dwarfs or Santa's eight tiny reindeer than can name the nine justices of the Supreme Court. This is a false comparison. In the 65 years of my life, the seven dwarfs have always... |
2015 |
Lili Levi |
A "Faustian Pact"? Native Advertising and the Future of the Press |
57 Arizona Law Review 647 (2015) |
As technology undermines the economic model supporting the traditional press, news organizations are succumbing to the siren call of native advertising--a new marketing technique for unobtrusively integrating paid advertising into editorial content. Brands are increasingly turning to native ads to preempt consumers' well-documented ad avoidance.... |
2015 |
Matthew L.M. Fletcher |
A Restatement of Federal Indian Law? |
40-MAY Human Rights 23 (May, 2015) |
The venerable American Law Institute, established nearly a century ago to address rising complexity and uncertainty in the common law, has begun a project to restate federal Indian law. Along with my co-reporters Wenona Singel and Kaighn Smith, I serve as reporter for the project. We take our appointments very seriously--it is a distinguished... |
2015 |
Matthew L.M. Fletcher |
A Short History of Indian Law in the Supreme Court |
40-MAY Human Rights Rts. 3 (May, 2015) |
The history of federal Indian law in the Supreme Court is dynamic, controversial, and inspiring. The history starts with the earliest decades of the Supreme Court and tracks the growth of the American Republic. The long history of Supreme Court decisions in Indian law has cemented several guiding principles. First, Congress has plenary power in the... |
2015 |
Michelle Silverthorn, Founder and CEO, Inclusion Nation |
Addressing the Tech-savvy Stereotype |
34 No.1 Legal Management Mgmt. 2 (January, 2015) |
According to Prensky, digital natives are those who spent their entire lives surrounded by and using computers, video games, digital music players, video cams, cell phones, and all the other toys and tools of the digital age. In shorthand, they are those born after 1980 and easily correlate with the millennial generation and later cohorts.... |
2015 |
Nicholas R. VandenBos |
Alliance for the Wild Rockies and Native Ecosystems Council V. Krueger, 950 F. Supp. 2d 1196 (D. Mont. 2013) |
36 Public Land & Resources Law Review 299 (2015) |
The plaintiffs in Alliance for the Wild Rockies and Native Ecosystems Council v. Krueger challenged two U.S. Forest Service fuel reduction projects in the Gallatin National Forest (Forest). The first, the Bozeman Municipal Watershed Project (Bozeman Project) authorized the construction or reopening of ten miles of forest road to facilitate... |
2015 |
Professor Maylinn Smith |
And Justice for All, Someday: Indians, Alaska Natives Face Unique Obstacles |
40-JUL Montana Lawyer 12 (June/July, 2015) |
American Indians and Alaska Natives experience many of the same barriers to legal services that other similarly situated individuals encounter. Poverty, unemployment, transportation issues, communication difficulties, limited access to attorneys, the rural nature of communities, and limits on technological resources are barriers commonly identified... |
2015 |
Michael D. Oeser |
AVOIDING EXTINCTION, PRESERVING CULTURE: SUSTAINABLE, SOVEREIGNTY-CENTERED TRIBAL CITIZENSHIP REQUIREMENTS |
91 North Dakota Law Review 1 (2015) |
Tribal populations are dwindling. These losses are primarily the result of high blood quantum requirements and high levels of inter-marriage with non-Indians. Consequently, tribes will eventually face either legal extinction--where no one can meet the tribal's citizenship criteria--or practical extinction--where few tribal citizens have any... |
2015 |
Shannon M. Morris |
Baby Veronica Ruling: Implications for the Indian Child Welfare Act in Indian Child Removals and Adoptions to Non-indian Custodians |
72 National Lawyers Guild Review Rev. 1 (Spring, 2015) |
Let us put our minds together and see what life we can make for our children. --Chief Sitting Bull In 1978, the Indian Child Welfare Act (ICWA) was enacted to prevent the biased treatment of Indian children and families by public and non-Indian private child welfare systems. The assimilation policies of the 1950s and 1960s were all designed to... |
2015 |
Amanda E. Schreyer |
Beyond the Buzzwords |
8 No.2 Landslide 12 (November/December, 2015) |
Native advertising, content marketing, paid media, earned media, sponsored posts, promoted content, advertorials--today advertising and marketing lawyers need to be able to understand myriad forms of messaging in order to advise clients proficiently, whether those clients are advertisers, agencies, publishers, or influencers. The manner in which a... |
2015 |
Gregory Ablavsky |
Beyond the Indian Commerce Clause |
124 Yale Law Journal 1012 (January-February, 2015) |
The Supreme Court has described the Indian Commerce Clause as the primary constitutional basis for federal exclusive and plenary power over Indian affairs. Recently, Justice Clarence Thomas, citing current scholarship, has argued that the Clause's original understanding does not support this authority, with radical implications for current... |
2015 |
Christina Lewis |
Born Native, Raised White: the Divide Between Federal and Tribal Jurisdiction with Extra-tribal Native American Adoption |
7 Georgetown Journal of Law & Modern Critical Race Perspectives 245 (Fall, 2015) |
In 1978, Congress passed the Indian Child Welfare Act (ICWA) in response to the alarming rate at which Native American children were being removed from their homes by both private and public agencies and placed with white families. In a 1976 study, Steven Unger found that twenty-five to thirty-five percent of Native American children were being... |
2015 |
Doug Coulson |
British Imperialism, the Indian Independence Movement, and the Racial Eligibility Provisions of the Naturalization Act: United States V. Thind Revisited |
7 Georgetown Journal of Law & Modern Critical Race Perspectives Persp. 1 (Spring, 2015) |
This article reexamines the United States Supreme Court's opinion in United States v. Thind, which held that high caste Hindus were not white persons and were therefore racially ineligible for naturalized citizenship, through a rhetorical history of the briefs, judicial opinions, National Archives and Records Administration documents, and British... |
2015 |
Matthew L.M. Fletcher |
BULLSHIT AND THE TRIBAL CLIENT |
2015 Michigan State Law Review 1435 (2015) |
C1-2Table of Contents Introduction. 1436 I. The Tribal Client. 1439 A. Tribal Leadership. 1440 B. In-House Counsel. 1442 1. Tribal Political Pressures. 1443 2. Outside Counsel. 1448 3. The Supreme Court Bar. 1450 4. Zealous Advocacy and In-House Counsel. 1453 II. Bullshit. 1456 A. The Goals of the Tribal Client. 1456 B. The Goals of Outside... |
2015 |
Kanyinke Sena |
Carbon Credit Schemes and Indigenous Peoples in Kenya: a Commentary |
32 Arizona Journal of International and Comparative Law 257 (Symposium, 2015) |
I. Introduction. 257 II. Climate Change in Kenya. 260 III. Carbon Credit Schemes in Kenya. 262 A. Clean Development Mechanism Projects. 262 B. Voluntary Carbon Credit Schemes. 263 IV. Carbon Credit Schemes and Indigenous Peoples in Kenya. 265 A. Rights to Land and Territories. 267 B. Consultation and Free, Prior and Informed Consent. 269 C.... |
2015 |
|
Chapter 17 • Native American Resources |
2015 ABA Environment, Energy, and Resources Law: The Year in Review 171 (2015) |
Several recurring themes emerged this year. This article will sample cases rather than provide an exhaustive list because future Congressional or Supreme Court action on these issues is likely. 1. Challenges to the Indian Child Welfare Act Several lawsuits have challenged the validity of the Indian Child Welfare Act (ICWA). Perhaps the most notable... |
2015 |
Jamie Kay Ford , Erick Giles |
Climate Change Adaptation in Indian Country: Tribal Regulation of Reservation Lands and Natural Resources |
41 William Mitchell Law Review 519 (2015) |
I. Introduction. 520 II. Climate Change in Indian Country. 523 A. The Causes and Impacts of Climate Change. 523 B. The Amplified Impacts of Climate Change in Indian Country. 524 C. Regional Overview of Climate Change Impacts in Indian Communities. 526 D. Legacy of Removal of Indigenous Peoples. 530 III. Responding to Climate Change via Tribal Land... |
2015 |
Mallory Irwinsky |
COALBED METHANE DEVELOPMENT IN WYOMING AND MONTANA: THE POTENTIAL IMPACTS OF MONTANA V. WYOMING, COALBED METHANE DEVELOPMENT, AND WATER QUALITY ON THE TRIBES OF THE POWDER RIVER AND WIND RIVER BASINS |
39 American Indian Law Review 553 (2014-2015) |
For the past few decades, the production of coalbed methane (CBM) across the United States has grown as the demand for fuel has increased across the nation, coupled with a desire for cleaner-burning energy sources. CBM, a form of natural gas, is not only cheaper to produce than conventional natural gas, but it is touted as a clean energy... |
2015 |
Bethany R. Berger, University of Connecticut |
Colin G. Calloway, Pen & Ink Witchcraft: Treaties and Treaty Making in American Indian History, New York: Oxford University Press, 2013. Pp. Xii + 374. $34.95 Cloth (Isbn 978-0-19-991730-3). Doi:10.1017/s0738248015000176 |
33 Law and History Review 478 (May, 2015) |
Treaties with Native nations are foundational in federal Indian law and policy, and historians and legal scholars have written many great works on the subject. Colin Calloway's new book, however, stands out for giving at once a finely detailed portrait of the participants and motivations involved in the treaties and the changing place of those... |
2015 |
Robyn Bourgeois |
Colonial Exploitation: the Canadian State and the Trafficking of Indigenous Women and Girls in Canada |
62 UCLA Law Review 1426 (August, 2015) |
This Article argues that because of its historical and ongoing investments in settler colonialism, the Canadian state has long been complicit and continues to be complicit in the human trafficking of indigenous women and girls in Canada. In addition to providing indigenous bodies for labour and sexual exploitation, Canada's trafficking of... |
2015 |
George K. Foster |
Combating Bribery of Indigenous Leaders in International Business |
54 Columbia Journal of Transnational Law 59 (2015) |
As U.S. law enforcement agencies have intensified their efforts to combat bribery in international business under the Foreign Corrupt Practices Act (FCPA), one form of corruption has been overlooked: bribery of indigenous leaders by multinational enterprises undertaking projects that will impact their communities. This Article demonstrates that the... |
2015 |
Jessica Intermill |
Competing Sovereigns: Circuit Courts' Varied Approaches to Federal Statutes in Indian Country |
62-SEP Federal Lawyer 64 (September, 2015) |
The Federal Lawyer's April 2015 Indian Law issue detailed jurisdictional hooks that allow private parties to sue Indian tribes in employment-law cases. The topic is an important one. Some federal laws expressly apply to tribes and allow suit, but Congress expressly exempted tribes from other laws. Where the text of a federal statute appears to... |
2015 |
Catherine E. Polta |
Conceptualizing Corporations as Native Administrative Units |
7 Georgetown Journal of Law & Modern Critical Race Perspectives 297 (Fall, 2015) |
In Runyon v. Association of Village Council Presidents, the Supreme Court of Alaska espoused an ill-considered bright line threshold criterion for determining which Alaska Native corporations benefit from tribal immunity. As a result, nonprofit corporations formed by tribes under Alaska law are categorically ineligible for immunity. This result is... |
2015 |
Kirsten Matoy Carlson |
Congress and Indians |
86 University of Colorado Law Review 77 (Winter 2015) |
Contrary to popular narratives about courts protecting certain minority rights from majoritarian influences, Indian nations lose in the United States Supreme Court over 75 percent of the time. As a result, scholars, tribal leaders, and advocates have suggested that Congress, as opposed to the courts, may be more responsive to Indian interests and... |
2015 |
Drew Kraniak |
Conserving Endangered Species in Indian Country: the Success and Struggles of Joint Secretarial Order 3206 Nineteen Years on |
26 Colorado Natural Resources, Energy & Environmental Law Review 321 (Summer 2015) |
I. Introduction. 323 II. Conservation in Indian Country. 323 III. The Endangered Species Act. 325 A. Endangered Species Act Overview. 326 B. The Endangered Species Act in Indian Country. 327 IV. Joint Secretarial Order 3206. 328 A. The Order's Provisions. 329 B. Possible Sources of Conflict with the Order. 330 C. Existing Academic Evaluations of... |
2015 |
Alex Tallchief Skibine |
Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes |
39 American Indian Law Review 77 (2014-2015) |
Introduction. 78 I. The Evolution of the Implicit Divestiture Doctrine. 83 A. United States v. Lara. 83 B. Justice Rehnquist's Oliphant Opinion. 85 C. Justice Stewart's Modification. 87 D. Duro v. Reina: Justice Kennedy's Quasi-Constitutional Approach. 89 E. Nevada v. Hicks: Justice Scalia's Balancing Approach. 92 F. Chief Justice Roberts'... |
2015 |
Robert J. Miller |
Consultation or Consent: the United States' Duty to Confer with American Indian Governments |
91 North Dakota Law Review 37 (2015) |
This article explores the current international law movement to require nations/states to consult with Indigenous peoples before undertaking actions that impact Indigenous nations and communities. The United Nations took a significant step in this area of law in September 2007 when the General Assembly adopted the Declaration on the Rights of... |
2015 |
Naayeli E. Ramirez Espinosa |
Consulting Indigenous Peoples in the Making of Laws in Mexico: the Zirahuén Amparo |
32 Arizona Journal of International and Comparative Law 647 (Fall, 2015) |
C1-3Table of Contents I. Introduction. 647 II. The Zirahuén Amparo. 648 A. The Broader Context of the Lawsuit. 649 B. The Zirahuén Community. 651 C. The Zapatista Movement, the San AndrÉs Accords, and the Constitutional Amendment of August 14, 2001. 653 1. The Zapatista Revolution. 654 2. The Rejection of the Constitutional Amendment of August 14,... |
2015 |
Jootaek Lee |
Contemporary Land Grabbing: Research Sources and Bibliography |
107 Law Library Journal 259 (Spring, 2015) |
This article investigates issues related to contemporary land grabbing. First it defines contemporary land grabbing and identifies the difficulties of research. Next, it delineates various mechanisms and international principles that can be useful in protecting those affected by contemporary land grabs. Finally, it selectively reviews current... |
2015 |
Danna R. Jackson, Esq. |
Cooperative (And Uncooperative) Federalism at Tribal, State, and Local Levels: a Case for Cooperative Charging Decisions in Indian Country |
76 Montana Law Review 127 (Winter 2015) |
A non-Indian (Defendant) returned to the home he shared with his domestic partner (Victim), who is an Indian. Defendant kicked in the door and threw a lighter at Victim. The lighter hit her in the face. She tried to leave with their two children. Defendant locked the front door, precluding escape. Victim and the children then tried to leave out the... |
2015 |
Gabriel S. Galanda, Ryan D. Dreveskracht |
CURING THE TRIBAL DISENROLLMENT EPIDEMIC: IN SEARCH OF A REMEDY |
57 Arizona Law Review 383 (2015) |
This Article provides a comprehensive analysis of tribal membership, and the divestment thereof--commonly known as disenrollment. Chiefly caused by the proliferation of Indian gaming revenue distributions to tribal members over the last 25 years, the rate of tribal disenrollment has spiked to epidemic proportions. There is not an adequate remedy... |
2015 |
Ibrahim H. Juma |
Delinking the Law of Evidence of Tanzania from its Indian Ancestry |
33 Boston University International Law Journal 297 (Summer 2015) |
Introduction: Navigating the Long, Complicated, and Outdated Evidence Act. 297 A. Interconnected Provisions of the TEA. 300 B. Section 7: The Key to Understanding the TEA. 301 C. The TEA and the Rule against Hearsay. 303 I. Outside Influence on the TEA. 304 II. History of Evidentiary Reform in Tanzania: The Choice between Complete Overhaul and... |
2015 |
Thomas W. Fredericks , Managing Partner, Fredericks Peebles & Morgan LLP |
Developing a National Indian Water Rights Policy |
2015 Aspatore 9194947 (November, 2015) |
In the western part of the United States, water rights are valuable. In most of the West, crops do not grow without irrigation, and much of the land cannot support significant livestock unless the landowner has water rights. The rapidly growing cities in the West need ever-increasing amounts of water. As federal courts have consistently recognized,... |
2015 |
Bethany R. Berger |
Diversely Native |
62-JUN Federal Lawyer 54 (June, 2015) |
Many federal Indian law professors have experienced some version of the following: We go to a law school to give a workshop on a specific aspect of federal Indian law and get a question along the lines of Why should there be tribes? One might compare it to giving a talk on a specific aspect of constitutional or international law and getting the... |
2015 |
by Amy Kullenberg, Ann Arbor, MI |
Dollar General Corporation |
43 No.3 Preview of United States Supreme Court Cases 99 (11/30/2015) |
This case explores the authority of a tribal court to adjudicate civil tort claims brought by tribal members against a nontribal member, where: (1) the nonmember civil defendant is a corporation operating a retail store on tribal trust land, pursuant to a business license obtained from the tribal government; (2) the nonmember civil defendant... |
2015 |
Alexia Herwig , Gregory Shaffer |
Editors' Introduction: Trade, Animal Welfare, and Indigenous Communities: a Symposium on the Wto Ec--seal Products Case |
108 AJIL Unbound 282 (March, 2014-July, 2015) |
The World Trade Organization (WTO) Appellate Body's (AB) decision in the EC-- Seal Products case of May 2014 has stirred considerable debate among legal academics regarding several of its findings and interpretations. The decision touches upon hotly debated issues in WTO law's reading and application that have broad public policy implications. The... |
2015 |
Gregory S. Arnold |
Employment Law in Indian Country: Finding the Private-action Jurisdictional Hook Is Not Easy |
62-APR Federal Lawyer Law. 3 (April, 2015) |
When representing employment discrimination claimants with grievances against American Indian tribes, first find an appropriate jurisdictional hook. The adage easier said than done comes to mind. The standard approaches to finding jurisdiction do not typically apply, whether in a district circuit court or a tribal court. The difficulty is rooted... |
2015 |
Senator Byron L. Dorgan, Joanne Shenandoah |
Ending Violence So American Indian Alaska Native Children Can Thrive |
40-MAY Human Rights 10 (May, 2015) |
The children of the first Americans should not be left behind. Yet, that is what American Indian and Alaska Native (AI/AN) children have been facing for decades. Inadequate schools, housing, health care, and more have created conditions that cannot continue. These children have been disadvantaged by the false promises that were made to American... |
2015 |