Major General (Retired) Michael J. Nardotti, Jr The First Sgm John A. Nicolai Leadership Lecture 216 Military Law Review 233 (Summer, 2013) Thank you. Thank you very much, Sergeant Major, for that very gracious introduction. I would add my welcome to the distinguished guests. Thank you, Lieutenant General Chipman, The Judge Advocate General, for being here. And I would like to say thank you to Major General Altenburg for making the trip down this morning, and the many other... 2013
S. James Anaya The Human Rights of Indigenous Peoples: United Nations Developments 35 University of Hawaii Law Review 983 (Spring, 2013) I. INTRODUCTION. 983 II. THE INSTITUTIONAL COMMITMENT. 984 A. The Working Group on Indigenous Populations. 985 B. The Permanent Forum on Indigenous Issues. 986 C. The Special Rapporteur on Rights of Indigenous Peoples. 987 D. Expert Mechanism on the Rights of Indigenous Peoples. 991 III. INTERNATIONAL STANDARD-SETTING. 992 A. The UN Declaration on... 2013
Alex Tallchief Skibine The Indian Gaming Regulatory Act at 25: Successes, Shortcomings, and Dilemmas 60-APR Federal Lawyer 35 (April, 2013) The Indian Gaming regulatory Act (IGRA), is a unique piece of legislation. Historically, the Indian nations have had a trust relationship with the federal government. The problem with this relationship is that it is an exclusive binary relationship between the Indian nations and the federal government. There is no room for the states in this... 2013
Dinah Shelton The Inter-american Human Rights Law of Indigenous Peoples 35 University of Hawaii Law Review 937 (Spring, 2013) I. INTRODUCTION. 937 II. THE INTER-AMERICAN SYSTEM AND ITS LEGAL INSTRUMENTS. 941 III. INTER-AMERICAN COMMISSION RESOLUTIONS AND REPORTS ON INDIGENOUS RIGHTS. 948 IV. CASE LAW. 950 V. ANALYSIS. 968 A. Foundation and Scope of the Right to Property. 970 B. Keeping Property: Extractive Industries and Resource Rights. 972 C. Cultural Rights. 976 D.... 2013
Dana E. Prescott The Modern "World" of Families Sure Is Flat and Noisy: a Book Review: Ann Laquer Estin, International Family Law Desk Book 26 Journal of the American Academy of Matrimonial Lawyers 209 (2013) Professor Ann Laquer Estin has written an excellent book for practitioners that combines comprehensive scholarship, clear writing, and useful citations. As a decades-long consumer of law books designed and marketed as desk books, I have developed a mental checklist (or bias) by which I assess value: (1) Does the table of contents and index allow me... 2013
C. Joseph Lennihan The New Indian Leasing Regulations: Express Preemption of State Taxation in Indian Country? 23-SEP Journal of Multistate Taxation and Incentives 30 (September, 2013) The Bracker balancing test produced notoriously uneven results; while recent court decisions tipped the scales of taxation in favor of states, the new regulations tilt the scale back in favor of tribal prerogatives. In December 2012, outgoing Secretary of Interior Ken Salazar promulgated new regulations amending Part 162 of Title 25 (Indians) of... 2013
Philip (jay) Mccarthy, Jr. The Oncoming Storm: State Indian Child Welfare Act Laws and the Clash of Tribal, Parental, and Child Rights 15 Journal of Law and Family Studies 43 (2013) An increasing trend has been the enactment of state laws that supplement the federal Indian Child Welfare Act of 1978 (ICWA). These state laws grant Indian tribes significant statutory rights that jeopardize the constitutional rights of both children and parents. Two particular examples where such state legislation infringes upon the constitutional... 2013
Philip (jay) Mccarthy, Jr. The Oncoming Storm: State Indian Child Welfare Act Laws and the Clash of Tribal, Parental, and Child Rights 2013 Utah Law Review 1027 (2013) An increasing trend has been the enactment of state laws that supplement the federal Indian Child Welfare Act of 1978 (ICWA). These state laws grant Indian tribes significant statutory rights that jeopardize the constitutional rights of both children and parents. Two particular examples where such state legislation infringes upon the constitutional... 2013
Stefaan Smis, Dorothée Cambou, Genny Ngende The Question of Land Grab in Africa and the Indigenous Peoples' Right to Traditional Lands, Territories and Resources 35 Loyola of Los Angeles International and Comparative Law Review 493 (Summer 2013) On 13 September 2007, the UN General Assembly adopted the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). This event was not only a landmark for the indigenous peoples' movement but also constituted an important contribution to the universal human rights system. The declaration has indeed, after two decades of difficult negotiations,... 2013
Patrick W. Thomas The Recurring Native Response to Global Labor Migration 20 Indiana Journal of Global Legal Studies 1393 (2013) For the past few decades, and increasingly in the past few years, U.S. state governments have supplemented federal immigration law with state laws overtly designed to combat the perceived ills stemming from undocumented immigration to the United States. Proponents of these laws justify them on the basis of a normative negativity associated with... 2013
Barbara L. Creel The Right to Counsel for Indians Accused of Crime: a Tribal and Congressional Imperative 18 Michigan Journal of Race and Law 317 (Spring 2013) INTRODUCTION. 319 I. The Evolution of the Constitutional Right to Counsel as a Fundamental Right Afforded Criminal Defendants in American Courts. 323 A. The Right to Counsel Under English Common Law and in the American Colonies. 323 B. The Nature of the Right to Counsel in State and Federal Courts. 325 C. Effective Assistance of Counsel. 329 II.... 2013
Birgit Lode, Milan Dehnen The Role of Domestic Law in "Agreed Outcome with Legal Force" 7 Carbon & Climate Law Review 252 (2013) With the Warsaw conference just behind us, and less than two years left for the drafting of an agreement intended to follow in the footsteps of the Kyoto Protocol, this article addresses the question how such a successor might look like, i.e., which legal form it might actually take, adhering to the requirements set out in the decision the parties... 2013
Melina Angelos Healey The School-to-prison Pipeline Tragedy on Montana's American Indian Reservations 37 New York University Review of Law and Social Change 671 (2013) I. Introduction. 673 II. Foundations of the Pipeline. 674 A. The Nationwide School-to-Prison Pipeline. 674 B. Tribes and Reservations Examined in this Article. 677 III. Background and Approach. 679 A. The Legacy of American Indian Boarding Schools and Educational Segregation. 679 B. The Utility of a Critical Race Approach to Understanding the... 2013
Oscar Yale Lewis III , Owner, Law Offices, O. Yale Lewis III The Shifting Sands of American Indian Policy 2013 Aspatore 5293045 (October, 2013) Tribes have always had inherent retained authority to establish membership criteria and then to apply those criteria to individual candidates for membership. While this authority is not subject to state law, it is subject to the plenary power of Congress. However, Congress has generally refrained from legislating in the area of tribal membership.... 2013
Elizabeth Salmón G. The Struggle for Laws of Free, Prior, and Informed Consultation in Peru: Lessons and Ambiguities in the Recognition of Indigenous Peoples 22 Pacific Rim Law & Policy Journal 353 (March, 2013) Despite the fact that Peru ratified ILO Convention 169 on December 2, 1993 and was therefore bound by those dispositions, it adopted public policies without consulting indigenous people. This lack of dialogue led to social conflict over the management of natural resources. In June 2009, a violent episode of social unrest emerged in the... 2013
Kathryn E. Fort The Vanishing Indian Returns: Tribes, Popular Originalism, and the Supreme Court 57 Saint Louis University Law Journal 297 (Winter 2013) As the nation faces cultural divides over the meaning of the Founding, the Constitution, and who owns these meanings, the Court's embrace of originalism is one strand that feeds the divide. The Court's valuing of the original interpretation of the Constitution has reinforced the Founder fetishism also found in popular culture, specifically within... 2013
Edna Udobong Trends in Cross-border Lawyering: the Gats Ideal or the Indian Reality for U.s. Lawyers? 43 California Western International Law Journal 343 (Spring 2013) This article analyzes the impact of the challenges posed by recent developments in cross-border legal services. It examines the General Agreement on Trade in Services (GATS), its provisions on trade in legal services, and its implications for cross-border lawyering for U.S. lawyers. Recognizing the growing global context of the practice of law, the... 2013
Matthew L.M. Fletcher Tribal Membership and Indian Nationhood 37 American Indian Law Review Rev. 1 (2012-2013) American Indian tribes are in a crisis of identity. No one can rationally devise a boundary line between who is an American Indian and who is not. And yet, each federally recognized tribe has devised a legal standard to apply in deciding who is a member and who is not. Despite some ambiguity and much litigation, these are relatively bright lines.... 2013
J. Stanford Hays Twisting the Law: Legal Inconsistencies in Andrew Jackson's Treatment of Native-american Sovereignty and State Sovereignty 21 Journal of Southern Legal History 157 (2013) The basic principles of Native-American law pre-date the discovery of the New World and the creation of the United States Constitution. The laws that governed the Europeans when they first came in contact with the original native inhabitants were the laws of nations, based on the concept of natural rights. The theory of natural rights respected the... 2013
Katherine Robillard Uncounseled Tribal Court Convictions: the Sixth Amendment, Tribal Sovereignty, and the Indian Civil Rights Act 2013 University of Illinois Law Review 2047 (2013) Tribal courts tasked with the prosecution of Native American defendants are not constrained by many Constitutional provisions, including the Sixth Amendment right to counsel in criminal proceedings. Currently, the Indian Civil Rights Act only requires representation in tribal court prosecutions of indigent defendants that may lead to incarceration... 2013
Anna Cowan Undrip and the Intervention: Indigenous Self-determination, Participation, and Racial Discrimination in the Northern Territory of Australia 22 Pacific Rim Law & Policy Journal 247 (March, 2013) The adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) by the General Assembly in 2007 was a landmark achievement in the development of indigenous rights under international law, particularly through its unequivocal recognition of indigenous peoples' right to self-determination. That same year,... 2013
Daniel Donovan, John Rhodes Update: Who Is an Indian? 38-APR Montana Lawyer 28 (April, 2013) Last year, we published an article in the Montana Law Review reviewing who is an Indian for federal criminal jurisdiction purposes in Indian Country cases. This Indian jurisprudence has centered in the Ninth Circuit. Case after case arose off of Montana's Indian reservations. From the High-Line reservations the cases worked their way to federal... 2013
L. Reagan Florence When Ferae Naturae Attack: Public Policy Implications and Concerns for the Public and State Regarding the Classification of Indigenous Wildlife as Interpreted under State Immunity Statutes 35 Hamline Journal of Public Law and Policy 157 (Fall, 2013) All meanings, we know, depend on the key of interpretation --George Eliot On a family campout an 11-year-old boy is stolen, still in his sleeping bag-- dragged in the middle of the night from his tent by a wild black bear--the boy is mauled to death. This gruesome and tragic incident sparked a recent perplexing court decision that has unhinged... 2013
Rich Acello Who's Zoomin' Who? 99-FEB ABA Journal 11 (February, 2013) First there was the outsourcing of routine legal work by American firms to Indian subcontractors. Now Indian lawyers are getting outsourced by the new trend in their country: DIY legal businesses much like Legal Zoom or Nolo in the U.S. These Indian businesses include VakilSearch and TM Guru, and they use technology and a back end staffed by... 2013
Swethaa Ballakrishnen Why Is Gender a Form of Diversity?: Rising Advantages for Women in Global Indian Law Firms 20 Indiana Journal of Global Legal Studies 1261 (2013) Introduction Following market liberalization in 1991, the Indian legal profession has had more demands for cross-national legal services than ever before. One of the ways in which the country has responded to this new work and clientele is by reorganizing its professional spaces in new, competitive ways. On the one hand, there has been a burgeoning... 2013
Jocelyn Jenks , Jacquelyn Amour Jampolsky Winner, Best Appellate Brief in the 2012 Native American Law Student Association Moot Court Competition 37 American Indian Law Review 323 (2012-2013) The Native Molokinians are the original inhabitants of Molokini. (Problem ¶ 1.) They are the only Native group within the Pacific Islands and they currently make up the state of Molokini. (Id.) Since time immemorial, the Native Molokinians have been self-governing and have a highly sophisticated form of government. (Id.) In the early seventeenth... 2013
Angelique Townsend Eaglewoman , (Wambdi A. Wastewin) Wintertime for the Sisseton-wahpeton Oyate: over One Hundred Fifty Years of Human Rights Violations by the United States and the Need for a Reconciliation Involving International Indigenous Human Rights Norms 39 William Mitchell Law Review 486 (2013) I. The Need to Address Ongoing Human Rights Violations. 487 II. Historical Interaction with the Whites from Trading Posts to U.S. Treaties. 488 A. Dakota Commerce with French and British Trading Posts. 490 B. U.S. Treaties with the Dakota Peoples in 1805, 1825, 1830, 1836, and 1837. 491 C. The Treaties of 1851 and the Washington D.C. Treaties of... 2013
Douglas Nash A Book Review: Reservation "Capitalism:" Economic Development in Indian Country (Praeger 2012) by Robert J. Miller, Associate Professor of Law Lewis & Clark Law School 10 Seattle Journal for Social Justice 829 (Spring, 2012) The concept of economic development sounds deceptively simple. Build a product. Sell consumer goods. Provide a service. Advertise. Generate income that can be used, in turn, to buy goods and services from others. In reality, economic development generally, and the development of an economy specifically, is far from simple. This is especially true... 2012
Benjamin J. Fosland A Case of Not-so-fatal Flaws: Re-evaluating the Indian Tribal Energy Development and Self-determination Act 48 Idaho Law Review 447 (2012) C1-3TABLE OF CONTENTS I. INTRODUCTION. 447 II. HISTORY AND BACKGROUND. 449 A. Federal Law Before the Indian Tribal Energy Development and Self-Determination Act. 449 B. Current System for Indian Reservation Energy Development. 451 III. DISCUSSION. 452 A. ITEDSA: What Is It and How Does It Work?. 452 B. Critical Evaluation of Anticipated Challenges... 2012
Gavin Kentch A Corporate Culture? The Environmental Justice Challenges of the Alaska Native Claims Settlement Act 81 Mississippi Law Journal 813 (2012) L1-2Introduction . R3813. I. Historical Background: ANCSA and the Creation of the Alaska Native Corporations. 814 II. Analysis. 819 A. Theory: An Imperfect Solution? Native Corporations and Procedural Justice. 819 1. Board of Directors Composition and Village Access to Decision Making. 820 2. Proxies and Afterborns. 822 3. Village Corporations vs.... 2012
Lloyd B. Miller A Most Unusual Alliance: Indian Tribes and Military Contractors Vindicate First Principles in the Ramah Litigation 59-NOV Federal Lawyer 48 (October/November, 2012) On June 18, 2012, the Supreme Court reaffirmed a bedrock contract law principle: when an agency over-commits itself to pay too many contracts, government contractors who have fully performed retain enforceable rights to be paid in full and can recover damages for any underpayment. In so doing, the Court rolled back an effort by the United States to... 2012
Andrea L. Johnson A Perfect Storm: the U.s. Anti-trafficking Regime's Failure to Stop the Sex Trafficking of American Indian Women and Girls 43 Columbia Human Rights Law Review 617 (Spring, 2012) In 2001, the United States Department of State ceremoniously revealed its inaugural Trafficking In Persons (TIP) Report, nine months after the passage of the Trafficking Victims Protection Act (TVPA)--the first comprehensive federal law to address human trafficking. The introduction to the statutorily mandated report included a bold statement: The... 2012
Aaron J. Stewart Acting for the Left Behind: How the Native Class Act Could Close the Gaps in American Indian Education 36 American Indian Law Review 347 (2012) A new bill in the Senate has many American Indians wondering whether the educational future of Native peoples is indeed bright, or whether the status quo will continue. On June 23, 2011, Senator Daniel Akaka introduced the Native Culture, Language, and Access for Success in Schools Act (Native CLASS Act). This bill's current thrust is to amend... 2012
Richard J. Schroeder , Partner, Davis Wright Tremaine LLP Advising Lenders of the Intricacies and Potential Hazards Involved in Participating in Commercial Transactions with Indian Tribes 2012 Aspatore 5898577 (2012) A lender considering entering into a finance transaction has to evaluate the 3 Cs: Character/Credit-Does the borrower have a history of creditworthiness? The attorney's credit issues for tribal borrowers are whether the tribe has adopted commercial ordinances or laws that support recognition and enforcement of a lender's rights to enforce... 2012
Ryan D. Dreveskracht Alternative Energy in American Indian Country: Catering to Both Sides of the Coin 33 Energy Law Journal 431 (2012) Synopsis: This article looks at both sides of the renewable energy coin in relation to American Indian country. On the one side, it appears that tribal governments are opposed to any energy development on their lands. All told, however, this couldn't be further from the truth - tribes merely seek a seat at the table when decisions are made... 2012
Kimberly Hausbeck, Northern Kentucky University Alvin J. Ziontz. A Lawyer in Indian Country: a Memoir. Seattle: University of Washington Press, 2009. 328 Pp. $27.95 (Cloth) 52 American Journal of Legal History 572 (October, 2012) This book is a good read. With vignettes in it describing every-thing from Marlon Brando's involvement in the Indian fishing rights struggle of the 1960s to behind-the-scenes details of at least seven major Federal Indian law cases brought before the U.S. Supreme Court, Ziontz's memoir is both an interesting and compelling narrative. Even lawyers... 2012
Quintin Cushner, Jon M. Sands Blood Should Not Tell 59-APR Federal Lawyer 31 (April, 2012) Blood should no longer play a leading role in determining whether a person is an Indian for purposes of federal criminal jurisdiction. The blood test evokes racial language in our jurisprudence that is outdated and unnecessary in 2012. A better test would discard blood and focus entirely on whether the person is enrolled or eligible for enrollment... 2012
Benjamin Hochberg Bringing Jim Thorpe Home: Inconsistencies in the Native American Graves and Repatriation Act 13 Rutgers Race & the Law Review 83 (2012) Yes. That order did not come from God. Justice, That dwells with the gods below, knows no such law. I did not think your edicts strong enough To overrule the unwritten unalterable laws Of God and heaven, you being only a man. The body of the greatest Native American athlete was sold in a midnight exchange for the benefit of local tourism. In... 2012
Jeffrey Aslan Building Alaska Native Village Resilience in a Post-peak World 37 Vermont Law Review 239 (Fall, 2012) The Vermont Law Review established the Ballenger-Green Memorial Diversity Paper in 2001 to commemorate the lives of Vermont Law School students Chandra Ballenger '02 and Orlando Green '01. The Ballenger-Green Paper is an opportunity for any student to address issues of human diversity through legal scholarship. Each year a paper is selected from... 2012
Amanda L. Cartwright , U.S. Bankruptcy Court, (D. Del.); Wilmington Can Native American-owned Casinos File for Chapter 11? 31-OCT American Bankruptcy Institute Journal 50 (October, 2012) For the first time, a bankruptcy court will decide the issue of whether a Native American-owned casino is eligible to file for bankruptcy under the Bankruptcy Code. On July 2, 2012, the Santa Ysabel Resort and Casino filed for chapter 11 protection in the U.S. Bankruptcy Court for the Southern District of California. Wholly owned by lipay Nation... 2012
Val Napoleon Chapter 11 Thinking about Indigenous Legal Orders 17 IUS Gentium 229 (2012) Indigenous law can be hard to see when we are used to seeing law as something the Canadian government or police make or do. Some people may even have been taught that Indigenous people did not have law before white people came here. This is a lie. Law can be found in how groups deal with safety, how they make decisions and solve problems together,... 2012
  Chapter 20 • Native American Resources 2012 ABA Environment, Energy, and Resources Law: The Year in Review 202 (2012) In Salazar v. Ramah Navajo Chapter, the Supreme Court held that the federal government is required to pay full contract support costs to Indian tribes who contract for services under the Indian Self-Determination and Education Assistance Act (Act). Under the Act, the Department of Interior is directed to enter into self-determination contracts on... 2012
Claire Chiamulera Charting New Territory 31 No.3 Child Law Practice 43 (March, 2012) Tucked in the desert 20 miles south of Phoenix, Arizona sits the Gila River Indian Community, home to members of the Pima and Maricopa tribes. Among its seven districts, Sacaton serves as the community's unofficial capital. Here sits the community's tribal court, a beautiful modern structure with a southwestern design. The ABA Child Welfare Trial... 2012
Ashley E. Brennan Child Abuse Is Color Blind: Why the Involuntary Termination of Parental Rights Provision of the Indian Child Welfare Act Should Be Reformed 89 University of Detroit Mercy Law Review 257 (Winter 2012) I. Purpose of the ICWA. 258 II. ITPR Proceedings--In General. 261 A. ITPR Proceedings in Michigan. 261 B. ITPR Proceedings Pursuant to the ICWA. 263 C. Three Key Differences between ICWA and Michigan ITPR Laws. 265 III. The Need for Reform. 267 A. Statistical Illustrations. 267 B. The Purposes Underlying the Enactment of the ICWA do not Support the... 2012
Andrea K. Wilkins Children, Tribes, and States: Adoption and Custody Conflicts over American Indian Children by Barbara Ann Atwood 315 Pp.; $42 Carolina Academic Press, 2010 700 Kent St., Durham, Nc 27701 (919) 489-7486 41-JAN Colorado Lawyer 85 (January, 2012) Children, Tribes, and States, by Barbara Ann Atwood, provides an overview of some of the basic holdings of American Indian law, including those involving Indian identity as a legal and political status, tribal sovereignty, questions of jurisdiction, and the intersection of tribal, state, and federal law involving implementation of the Indian Child... 2012
S. James Boumil III China's Indigenous Innovation Policies under the Trips and Gpa Agreements and Alternatives for Promoting Economic Growth 12 Chicago Journal of International Law 755 (Winter 2012) China's intricate web of Indigenous Innovation policies affords preferences in government procurement to certain high-technology products whose intellectual property is owned or registered in China. While the the policies were intended to strengthen China's national economy, they have been heavily criticized, notably by the US and the EU, as a... 2012
M. Brent Leonhard Closing a Gap in Indian Country Justice: Oliphant, Lara, and Doj's Proposed Fix 28 Harvard Journal on Racial & Ethnic Justice 117 (Spring 2012) I. Introduction. 118 II. A Problem That Desperately Needs Fixing. 120 III. Parsing Oliphant. 122 a. The Facts. 123 b. The Appellate Court Decision and Argument of the Parties before the United States Supreme Court. 124 c. The Majority Opinion. 126 i. Footnote six. 126 ii. The new phenomenon /tribes had no laws assertion. 127 iii. Footnote... 2012
  Closing Plenary--indigenous Peoples and International Law: a Conversation with Un Special Rapporteur James Anaya and Inter-american Commission Rapporteur Dinah Shelton 106 American Society of International Law Proceedings 525 (March 28-31, 2012) This panel was convened at 11:00 a.m., Saturday, March 31, by its moderator, N. Bruce Duthu of the Native American Studies Program, Dartmouth College, who introduced the speakers: James Anaya, UN Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples; and Dinah Shelton, Rapporteur on the Rights of... 2012
Clare Boronow Closing the Accountability Gap for Indian Tribes: Balancing the Right to Self-determination with the Right to a Remedy 98 Virginia Law Review 1373 (October, 2012) WITH the adoption of the United Nations (UN) Declaration on the Rights of Indigenous Peoples by the General Assembly in 2007 and the subsequent endorsement of the four holdout States--Australia, New Zealand, Canada, and the United States--there is nearly universal acknowledgement of the fundamental rights of indigenous peoples. The Declaration is... 2012
Mark Harris Cluster Introduction: Indigenous Populations and Injustice's Global Borders 42 California Western International Law Journal 437 (Spring 2012) In this twenty-first century, the violence and injustices first visited upon Indigenous Peoples some six centuries ago continue to be played out globally. Across the Americas, to the settler colonies of the British Commonwealth, and to the European outposts in Africa and the Middle East, we see a consistent theme of dispossession, forced labour,... 2012
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