Dinisha L. Fernando Intellectual Property and the Protection of Indigenous Culture in the United States and New Zealand: an Effective Solution for Indigenous Communities? 12 Cardozo Public Law, Policy and Ethics Journal 149 (Fall 2013) Introduction. 149 I. Indigenous Communities and the Protection of their Culture and Traditions. 151 II. The Rights of the Maori in New Zealand National Law. 158 III. The Rights of Native Americans in United States National Law. 168 IV. The Effectiveness of Intellectual Property in Protecting Indigenous Cultural Property. 178 Conclusion. 180 2013
Kirsten Matoy Carlson Jurisdiction and Human Rights Accountability in Indian Country 2013 Michigan State Law Review 355 (2013) Introduction. 355 I. The Enforcement Environment, Human Rights, and Human Rights Accountability in Indian Country. 362 A. The Enforcement Environment in Indian Country. 363 B. Government Accountability for Private Acts of Violence Under International Law. 367 C. Federal Barriers to Tribal Criminal Authority Undermine Human Rights Accountability.... 2013
Danielle C. Davis Land in the Second Decade: the Evolution of Indigenous Property Rights and the Energy Industry in the United States and Brazil 34 Energy Law Journal 667 (2013) I. Introduction. 667 II. Background. 669 A. Historical Indigenous Property Rights and the Discovery Doctrine. 669 1. Discovery of the Americas and Subsequent Colonialism. 669 2. Concepts of Property, Mineral Rights, and State Ownership. 670 3. The Discovery Doctrine. 671 B. The Pre-Declaration Era of International Interest in Indigenous Rights. 673... 2013
Kristen A. Carpenter , Eli Wald Lawyering for Groups: the Case of American Indian Tribal Attorneys 81 Fordham Law Review 3085 (May, 2013) Lawyering forgroups, broadly defined as the legal representation of a client who is not an individual, is a significant and booming phenomenon. Encompassing the representation of governments, corporations, institutions, peoples, classes, communities, and causes, lawyering for groups is what many, if not most, lawyers do. And yet, the dominant... 2013
Susann Funderud Skogvang Legal Questions Regarding Mineral Exploration and Exploitation in Indigenous Areas 22 Michigan State International Law Review 321 (2013) Introduction. 321 I. Current Interest on the Topic. 322 L1-2 II. International Legal Framework and Standards A. Generally. 327 B. Applicable Substantial Rights. 328 1. Superior Principles. 328 2. Right to Property. 330 3. Right to Culture. 333 4. Right to Self-Determination. 335 C. Applicable Procedural Rights. 336 D. U.N. Guiding Principles on... 2013
Uday Chandra Liberalism and its Other: the Politics of Primitivism in Colonial and Postcolonial Indian Law 47 Law and Society Review 135 (March, 2013) Liberalism is widely regarded as a modern intellectual tradition that defends the rights and freedoms of autonomous individuals. Yet, in both colonial and postcolonial contexts, liberal theorists and lawmakers have struggled to defend the rights and freedoms of political subjects whom they regard as primitive, backward, or indigenous.... 2013
Sally Harrison May I See Your Id? How Voter Identification Laws Disenfranchise Native Americans' Fundamental Right to Vote 37 American Indian Law Review 597 (2012-2013) Voter identification (ID) laws played a contentious role in the recent 2012 presidential election. It is uncertain whether these laws will emerge from the courts unscathed, but it is certain that voter ID laws have a negative impact on the ability of Native Americans to vote. The right to vote is one of the pillars upon which our democratic... 2013
by Steven D. Schwinn, The John Marshall Law School, Chicago, IL Michigan 41 No.3 Preview of United States Supreme Court Cases 135 (12/2/2013) Federal law provides for federal court jurisdiction over cases involving federal statutes, and cases to enjoin certain gaming activities on Indian lands. At the same time, Indian tribes enjoy tribal sovereign immunity from certain suits. This case tests the extent of both federal jurisdiction and Indian tribal sovereign immunity. The State of... 2013
Lindsey Schuler Modern Age Protection: Protecting Indigenous Knowledge Through Intellectual Property Law 21 Michigan State International Law Review 751 (2013) Abstract. 752 Introduction, to a Modern Age 752 I. Background: Development of Domestic, Sui Generis, and International Intellectual Property Law Protection. 753 A. United States Intellectual Property Forms and Definitions. 753 B. Sui Generis. 755 C. International Intellectual Property Protections. 757 1. World Trade Organization. 758 2. World... 2013
Michael M. Epstein Mutiny on the Pirate Ship: Indigenous Infringement and the Development of a Media Asset 21 Michigan State International Law Review 631 (2013) Introduction. 631 I. Understanding the Challenge. 632 II. Toward the Building of a Media Asset. 636 III. Practicalities. 641 Conclusion. 644 2013
Laura Ruth Talbert Native American Graves Protection and Repatriation Act: Requiring Federal Recognition Digs its Own Grave 37 American Indian Law Review 171 (2012-2013) The desire to bury our loved ones is a concept that dates back to the beginning of humankind. The Bible introduces burials in the Book of Genesis with Abraham requesting land from the Hittites to bury his wife, Sarah. Apart from literary records of burial practices, archaeologists have discovered physical evidence of the sacredness of burial sites.... 2013
Jeffrey Adam Sachs Native Courts and the Limits of the Law in Colonial Sudan: Ambiguity as Strategy 38 Law and Social Inquiry 973 (Fall, 2013) This article offers a way of thinking about colonial-era legal reform that departs from traditional narratives by highlighting the importance of legal ambiguity in state building projects. Following the establishment of Native Administration in the Sudan in the early 1920s, the British colonial government conferred expansive judicial and... 2013
Quin M. Sorenson Native Village of Kivalina V. Exxonmobil Corp.: the End of "Climate Change" Tort Litigation? 44 No.3 ABA Trends Trends 1 (2013) The decision of the Ninth Circuit in Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012), dealt another blow to recent attempts to use the federal common law tort system to address issues relating to greenhouse gas emissions and climate change. The Supreme Court held last year, in American Electric Power Co. v. Connecticut,... 2013
Nicole Johnson Native Village of Kivalina V. Exxonmobil Corp: Say Goodbye to Federal Public Nuisance Claims for Greenhouse Gas Emissions 40 Ecology Law Quarterly 557 (2013) The Native Village of Kivalina is located in a remote part of Alaska. Through sea level rise and the increase of coastal erosion, this area has been greatly affected by global climate change. The sea ice that once protected the village's land has been worn down, and storms that once hit the ice now devastate the area. Seeking monetary damages for... 2013
Paul H. Robinson Natural Law & Lawlessness: Modern Lessons from Pirates, Lepers, Eskimos, and Survivors 2013 University of Illinois Law Review 433 (2013) The natural experiments of history present an opportunity to test Hobbes's view that government and law are the wellspring of social order. Groups have found themselves in a wide variety of situations in which no governmental law existed, from shipwrecks to gold mining camps to failed states. Yet, despite the wide variety of situations, common... 2013
Kathryn A. Mayer Negotiating past the Zero-sum of Intractable Sovereignty Positions by Exploring the Potential of Possible Party Interests: a Proposed Dispute Resolution Framework for the Tobacco Tax Debacle Between the State of New York & the Seneca Nation of Indians 28 Ohio State Journal on Dispute Resolution 771 (2013) In 1994, the Supreme Court declared in Department of Taxation & Finance of New York v. Milhelm Attea & Bros., Inc. that legislation passed by the State of New York imposing state taxes on cigarette sales made on Indian reservations to non-Indians was facially permissible. However, by August 13, 2010-over a decade after the Supreme Court issued its... 2013
Sarah A. Garrott New Ways to Fulfill Old Promises: Native American Hunting and Fishing Rights as Intangible Cultural Property 92 Oregon Law Review 571 (2013) I. Hunting and Fishing Rights Are an Integral Part of Native American Culture. 574 A. The Native American Worldview and the Importance of Hunting and Fishing as a Spiritual Practice. 574 B. The Evolution of Native American Hunting and Fishing Practices. 576 C. The Cultural Importance of Hunting and Fishing to Current Native American Tribes. 579 II.... 2013
Judith Kimerling Oil, Contact, and Conservation in the Amazon: Indigenous Huaorani, Chevron, and Yasuni 24 Colorado Journal of International Environmental Law and Policy 43 (Winter 2013) I. Introduction. 44 II. Oil Boom. 46 III. National Integration and Land Rights. 47 IV. Environmental Protection in the Oil Patch. 57 V. Litigation in Texaco's Homeland. 63 VI. The Lago Agrio Litigation. 72 VII. The Intangible Zone and Conservation in Yasuni. 98 VIII. Conclusion. 113 The Huaorani (Waorani) are hunters and gatherers who have lived in... 2013
Arul George Scaria Online Piracy of Indian Movies: Is the Film Industry Firing at the Wrong Target? 21 Michigan State International Law Review 647 (2013) Introduction. 648 I. Online Piracy of Indian Movies. 649 II. Effectiveness of the Legal Measures Against Online Piracy. 657 III. Sustainable Solutions for Online Piracy. 660 Conclusion. 663 2013
Brian Sheets Papers or Plastic: the Difficulty in Protecting Native Spiritual Identity 17 Lewis & Clark Law Review 591 (2013) Sellers of Native ceremonies offer the opportunity to non-Natives to participate in ceremonial traditions with roots in Native spiritual communities--for a price. These plastic shamans have appropriated some Native ceremonies, sometimes with fatal results. Commodifying these spiritual practices removes important communal identities from their... 2013
Dorothée Cambou , Stefaan Smis Permanent Sovereignty over Natural Resources from a Human Rights Perspective: Natural Resources Exploitation and Indigenous Peoples' Rights in the Arctic 22 Michigan State International Law Review 347 (2013) Introduction. 348 I. Permanent Sovereignty over Natural Resources from the Perspective of Traditional International law. 350 A. Interstate Relations and the Delimitation of State Sovereignty in the Arctic. 350 B. Intrastate Relations and the Implication of Sovereignty for Indigenous Peoples in the Arctic. 354 II. Permanent Sovereignty Over Natural... 2013
Charles Prior Permitting Problems: Environmental Justice and the Miccosukee Indian Tribe 3 Barry University Environmental and Earth Law Journal 163 (2013) The Miccosukee Tribe of Indians is a federally recognized tribe that works and resides in the Everglades region of the State of Florida. The Miccosukee have been battling lax water quality standards through lawsuits since the 1990's. Recent rulings in federal court held that the State of Florida has failed to comply with the Clean Water Act and... 2013
Caitlain Devereaux Lewis Policies of Inequity - a World Apart: a Comparison of the Policies Toward Indigenous Peoples of a Post-colonial Developing Nation to Those of a Post-industrial Developed Nation 37 American Indian Law Review 423 (2012-2013) A people once numerous, powerful, and truly independent, found by our ancestors in the quiet and uncontrolled possession of an ample domain, gradually sinking beneath our superior policy, our arts and our arms, have yielded their lands . . ., until they retain no more of their formerly extensive territory than is deemed necessary to their... 2013
Jeffrey R. Sprague, Claudia G. Vincent, Tary J. Tobin, CHiXapkaid (Michael Pavel) Preventing Disciplinary Exclusions of Students from American Indian/alaska Native Backgrounds 51 Family Court Review 452 (July, 2013) We present 2009-2010 data on disciplinary exclusions in schools and juvenile incarcerations from one state in the United States to demonstrate that American Indian/Alaska Native (AI/AN) students: (a) are disproportionately overrepresented in disciplinary exclusions from the classroom, (b) lose 4.5 times as many student days as White students due to... 2013
Michael Blakeney Protecting the Spiritual Beliefs of Indigenous Peoples--australian Case Studies 22 Pacific Rim Law & Policy Journal 391 (March, 2013) This article examines the extent to which the spiritual beliefs of Aboriginal and Torres Strait Islander Peoples are protected under current Australian law. The first significant recognition by the High Court of Australia of the legal rights of indigenous peoples was in relation to native title over real property. As those peoples define... 2013
Angelique Townsend EagleWoman, Sheri Freemont, Gloria Valencia-Weber, Joseph Williams Recognizing the Importance of Indian Law on State Bar Examinations 60-APR Federal Lawyer 30 (April, 2013) Indian law is one of the most complicated areas of law in the United States due to the jurisdictional and substantive issues present. Overlapping governmental interests commonly involve federal jurisdiction, tribal jurisdiction, and at times, state jurisdictional components. There is also the possibility of multiple tribal jurisdictions being... 2013
Aparna Polavarapu Reconciling Indigenous and Women's Rights to Land in Sub-saharan Africa 42 Georgia Journal of International and Comparative Law 93 (2013) I. Introduction 94 II. The Move to Engage with Customary Law 97 III. Legal Frameworks 100 A. International and Regional Indigenous Rights Frameworks 101 B. Formalism in the Women's Rights Legal Frameworks 106 IV. The Gendered Difficulties of Customary and Statutory Law 110 A. Women's Rights Under Pre-Colonial Customary Tenure 111 B. Women and... 2013
Ryan Seelau Regaining Control over the Children: Reversing the Legacy of Assimilative Policies in Education, Child Welfare, and Juvenile Justice That Targeted Native American Youth 37 American Indian Law Review 63 (2012-2013) It is conservatively estimated that in 1491 there were at least forty million people living in the Americas. By the time the United States was founded in 1776, that number had decreased so substantially that federal Indian policy during President Washington's tenure was to let non-Indian population growth force the savage as the wolf, to retire.... 2013
David H. Getches Remarks of David H. Getches: Federal Bar Association Indian Law Conference (April 7, 2011) 84 University of Colorado Law Review 201 (Winter, 2013) At no other occasion is there so much expertise in Indian law gathered in one place, at one time. It is a tribute to the [Federal Bar Association (FBA)] that it does this year after year, renewing our exploration of a subject so vital and exciting to all who come together and so critical to the survival of tribal nations. Thanks to my Colorado... 2013
Joanna (Joey) Meldrum Reservation and Quantification of Indian Groundwater Rights in California 19 Hastings West-Northwest Journal of Environmental Law, Policy 277 (Summer 2013) I. Tribal History II. Importance of Water to Tribes in Southern California A. Surface Water B. Groundwater III. Users of Water on and under the Santa Ynez Reservation A. Current Groundwater Use by the Santa Ynez Chumash B. Water District C. Private Landowners and City of Solvang IV. Tribal Water Rights A. Priority Date of Reserved Water Right B.... 2013
Jada Scott Greenhowe Reservations Please! Could Energy Development on Native American Land Be America's Most Valuable Resource? 7 Pittsburgh Journal of Environmental and Public Health Law 279 (Spring, 2013) Over the past few decades, the energy market has expanded not only in profits, but also in discovery, development and necessity. As demands for energy, and subsequently for new sources of energy, continue to increase, the need to support those demands in a manner that is economically feasible increases as well. Recently, the United States has... 2013
Jason P. Hipp Rethinking Rewriting: Tribal Constitutional Amendment and Reform 4 Columbia Journal of Race and Law 73 (2013) This Essay examines the recent wave of American Indian tribal constitutional change through the framework of subnational constitutional theory. When tribes rewrite their constitutions, they not only address internal tribal questions and communicate tribal values, but also engage with other subnational entities, i.e. states, and the federal... 2013
  Revisions Proposed to Indian Country Minor Source Nsr Program 23 No.5 Air Pollution Consultant 2.13 (2013) On June 4, 2013 (78 FR 3326633276), EPA proposed revisions to the new source review (NSR) permitting requirements for minor sources located in Indian country. First, the proposed rule would expand the list of emission units and activities that are exempt from the tribal minor NSR program. Second, the proposed rule would revise the definition of... 2013
Sarah M. Block Richard V. United States: Government Contracts, Indian Treaties, and the Federal Circuit's Evolving Interpretation of "Bad Men" Provisions 23 Federal Circuit Bar Journal 245 (2013) In April 2012, the United States Court of Appeals for the Federal Circuit issued a decision promulgating an innovative interpretation of the bad men provision found in the Treaty of Fort Laramie of 1868. In addressing a seemingly minor claim arising out of a drunk-driving accident in South Dakota, the Federal Circuit broke from its previous... 2013
Jordan Diamond , Greta Swanson , Kathryn Mengerink Rights and Roles: Alaska Natives and Ocean and Coastal Subsistence Resources 8 Florida A & M University Law Review 219 (Spring, 2013) This article explores the strengths and weaknesses of the two pillars of the framework for managing marine subsistence resources in Alaska: the pillar that protects Alaska Native rights to marine subsistence resources, and the pillar that protects the resources themselves. It focuses on how well the pillars support subsistence practices and Alaska... 2013
Thomas M. Antkowiak Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-american Court 35 University of Pennsylvania Journal of International Law 113 (Fall 2013) In 2012, the Inter-American Court of Human Rights handed down Sarayaku v. Ecuador, a crucial decision on indigenous rights. This Article considers how the Sarayaku judgment impacts the Court's case law on indigenous lands and resources, and evaluates that jurisprudence as a whole. Examining the cases, it becomes evident that the Tribunal now... 2013
Rutherford Hubbard Risk, Rights and Responsibility: Navigating Corporate Responsibility and Indigenous Rights in Greenlandic Extractive Industry Development 22 Michigan State International Law Review 101 (2013) Introduction. 102 I. Extractive Industries and Indigenous Culture in Greenland. 106 A. Greenland; an Introduction. 106 1. Basic Information. 106 2. Extractive Industry Development. 108 3. Cultural Context and the Mixed Economy. 110 B. Legal Frameworks. 113 1. Legal Protection for Indigenous Rights. 113 2. Extractive Industry Regulation. 114 3. The... 2013
Deepa Das Acevedo Secularism in the Indian Context 38 Law and Social Inquiry 138 (Winter, 2013) Indian constitutional framers sought to tie their new state to ideas of modernity and liberalism by creating a government that would ensure citizens' rights while also creating the conditions for democratic citizenship. Balancing these two goals has been particularly challenging with regard to religion, as exemplified by the emergence of a... 2013
Sarah Krakoff Settler Colonialism and Reclamation: Where American Indian Law and Natural Resources Law Meet 24 Colorado Natural Resources, Energy & Environmental Law Review 261 (Summer 2013) I. Introduction. 262 II. The Colorado River Indian Tribes: From Elimination to Self-Determination. 264 A. Failed Attempts at Elimination: CRIT Survival from 1865-1958. 265 1. 1865-Early 1900s: Federal Dreams of 10,000 Indians. 266 2. Early 1900s-1958: Surviving Allotment and Relocation. 270 B. CRIT Self-Determination and Arizona v. California:... 2013
Arvind Narrain, Arun K. Thiruvengadam Social Justice Lawyering and the Meaning of Indian Constitutionalism: a Case Study of the Alternative Law Forum 31 Wisconsin International Law Journal 525 (Fall, 2013) On 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequalities. In politics we will be recognising the principles of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic... 2013
Nzingha Hooker Something More than Intent: Redefining Joint Authorship to Include America's Native Communities 41 AIPLA Quarterly Journal 771 (Fall, 2013) I. Introduction. 772 II. Defining Authorship. 775 A. The Historical Development of the Copyright Author. 776 B. The Existing Authorship Framework. 778 1. The Copyright Act and Authorship. 778 2. Case Law and the Definition of an Author. 781 C. Defining the Joint Author. 783 1. A Unitary Work. 784 2. Intention. 785 a. The Subjective Intent Standard.... 2013
Jernej Letnar C̆ernic̆ State Obligations Concerning Indigenous Peoples' Rights to Their Ancestral Lands: Lex Imperfecta? 28 American University International Law Review 1129 (2013) I. INTRODUCTION. 1130 II. DEFINING INDIGENOUS PEOPLES. 1134 III. THE SOURCES OF INDIGENOUS PEOPLES' RIGHTS IN NATIONAL AND INTERNATIONAL LEGAL ORDERS. 1136 A. Indigenous Land Rights in International Human Rights Law. 1136 B. National Legal Orders. 1141 IV. THE NATURE AND SCOPE OF INDIGENOUS RIGHTS TO TRADITIONAL ANCESTRAL LANDS. 1146 A. The... 2013
Nick Robinson Structure Matters: the Impact of Court Structure on the Indian and U.s. Supreme Courts 61 American Journal of Comparative Law 173 (Winter 2013) The U.S. Supreme Court sits as a unified bench of nine justices. The Indian Supreme Court sits in panels, and can have up to thirty-one justices. This Article uses the divergent structures of the U.S. and Indian Supreme Courts to explore how specific court structures are adopted to promote different values or understandings of what a supreme court... 2013
Jacob Berman Such Gaming Causes Trouble: Constitutional and Statutory Confusion with the Indian Gaming Regulatory Act 23 Seton Hall Journal of Sports and Entertainment Law 281 (2013) I. Origin of the Species. 282 A. Prehistory. 283 II. The Indian Gaming Regulatory Act. 287 A. Structure of the Act. 287 B. The circuit split. 290 1. The class-based test. 290 2. The Game-Based Test. 292 C. Tenth Amendment issues of the IGRA. 293 III. Why the Class-Based Test Incorrectly Interprets the Indian Gaming Regulatory Act. 297 A.... 2013
Benjamin A. Kahn Sword or Submission? American Indian Natural Resource Claims Settlement Legislation 37 American Indian Law Review 109 (2012-2013) I. Introduction. 110 II. Indian Natural Resource Claims Resolution Options. 114 III. Zuni Claims Settlement. 117 A. History of the Claims. 117 B. Proposed Legislative Settlement. 118 C. Controversial Issues in Settlement Legislation. 119 IV. Fort McDowell Indian Community Water rights Settlement. 123 A. History of the Fort McDowell Indian Community... 2013
Dean B. Suagee, Peter Bungart Taking Care of Native American Cultural Landscapes 27-SPG Natural Resources & Environment 23 (Spring, 2013) In the expanses of undeveloped public lands in the American Southwest, it may be tempting to perceive them as empty and unoccupied landscapes. Such a perception may be particularly common with respect to many of the national parks, national forests, and holdings under the jurisdiction of the Bureau of Land Management (BLM), which are often prized... 2013
Jeffrey Crockett The Department of the Interior's Final Rule Allots American Indians More Freedom to Lease Land for Residential, Commercial, and Renewable Energy Development in Order to Improve American Indians' Economic Condition. 2 University of Baltimore Journal of Land and Development 157 (Spring 2013) Almost 56 million acres of land are held in federal trust for tribal and individual American Indian use meaning that, while American Indians and American Indian tribes have exclusive use of the land, American Indians do not have the full bundle of rights as landowners would have over their land. Incidentally, as beneficiaries, American Indians... 2013
Robert Albro, American University The Elusive Promise of Indigenous Development: Rights, Culture, Strategy Karen Engle (Durham, Nc: Duke University Press, 2010) 36 PoLAR: Political and Legal Anthropology Review 174 (May, 2013) Karen Engle has written a timely book that considers recent advances in human rights-based indigenous advocacy, but also the potential limits of such advocacy. Engle provocatively explores how indigenous rights, understood as human rights, surprisingly might be detrimental to the development of indigenous communities and their pursuit of... 2013
JoAnne L. Dunec The Eskimo and the Oil Man: the Battle at the Top of the World for America's Future Bob Reiss Business Plus, Hachette Book Group, 2012 27-WTR Natural Resources & Environment 62 (Winter, 2013) It's a challenging environment, conceded Shell Alaska Vice President, Pete Slaiby. --San Francisco Chronicle, November 4, 2012 The Eskimo and the Oil Man illuminates the complexities of drilling for oil in the Arctic, including the daunting physical challenges, deep cultural concerns, and the arduous navigation through environmental analyses and... 2013
Raymond Cross The Fate of Native American Diversity in America's Law Schools 27 Journal of Civil Rights & Economic Development 47 (Fall, 2013) America's law schools should adopt a new diversity initiative that focuses on community development and empowerment within America's minority communities. Their adoption of this new initiative would help reinvigorate the law schools' now flagging social justice and public service missions. Further, there is a successful diversity model available... 2013
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