Wendy A. Church Hon. Theresa M. Pouley Chief Judge, Tulalip Tribal Court Tulalip Indian Reservation, Tulalip, Wash. 61-APR Federal Lawyer 20 (April, 2014) At the diminutive stature of 52, Chief Judge Theresa M. Pouley effortlessly takes command of any room, whether it is filled with White House officials, members of Congress, or anxious high schoolers visiting the Tulalip Tribal Court. Passion, conviction, and a strong presence exude from her when speaking on the topic of Indian law, the impact it... 2014
M. Alexander Pearl How to Be an Authentic Indian 5 California Law Review Circuit 392 (November, 2014) As you are all certainly aware of by now, image is everything. That is particularly true for us tribal people (or Native Americans as the bleeding- heart whiteskins are always so careful to say). Image is pretty much all we have left these days. The land is gone. The money is gone. The treaty rights are gone. And now, the cornerstone of our image... 2014
Molly Feiden , Madeline Gottlieb , Alan Krupnick , Nathan Richardson Hydraulic Fracturing on Federal and Indian Lands: an Analysis of the Bureau of Land Management's Revised Proposed Rule 29 Journal of Land Use & Environmental Law 337 (Spring, 2014) The federal government controls 700 million acres of subsurface rights (plus fifty-six million subsurface acres of Indian mineral estate) across twenty-four states, making it the largest landowner in the nation, and thus putting it in a position to negotiate lease terms and shape regulations of oil and gas development. The rules of the federal... 2014
Katherine M. Davis I, Too, Sing America: Customary International Law for American State and Federal Courts' Post-kiobel Jurisprudence, Guided by Australian and Indian Experiences 29 Emory International Law Review 119 (2014) In the excitement of the wake of the United States Supreme Court's 2013 Kiobel v. Royal Dutch Petroleum Co. decision, one less-addressed matter is the unresolved status of customary international law in American courts. This Comment highlights a lack of literature engaging comparative study of federally structured nations' experiences implementing... 2014
Philip H. Tinker In Search of a Civil Solution: Tribal Authority to Regulate Nonmember Conduct in Indian Country 50 Tulsa Law Review 193 (Summer 2014) I. Introduction. 194 A. 194 B. Background. 194 II. Tribal Jurisdiction over Non-Members. 198 A. Indian Lands or Fee Lands. 199 B. The First Montana Exception: Consensual Relations. 202 C. The Second Montana Exception: Political Integrity, Economic Security, or Health or Welfare. 205 D. Residual Jurisdiction: The Power to Exclude. 207 III.... 2014
Supriya Routh Independence sans Accountability: a Case for Right to Information Against the Indian Judiciary 13 Washington University Global Studies Law Review 321 (2014) The Indian Supreme Court may be standing at a historic juncture where it could throw open the doors to the public to question its accountability by disclosing information pertaining to the assets and interests of the judges of the higher judiciary. The Supreme Court, however, seems reluctant to bring the higher judiciary under the purview of the... 2014
Dru Miller Indian Court Expands its Jurisdiction over Foreign Arbitral Panels 6 Yearbook on Arbitration and Mediation 328 (2014) The question of whether Indian courts have jurisdiction to set aside foreign arbitral awards has the potential to affect the international arbitration community as well as international business in India. This question implicates the Indian Arbitration Act of 1996 (the Act), which governs all issues of the law relating to domestic arbitration,... 2014
David H. Tennant , Partner, Nixon Peabody LLP Indian Gaming Twenty-five Years after the Igra: a Litigator's Perspective 2014 Aspatore 3689772 (July, 2014) This chapter provides a current snapshot of Indian gaming in the United States, a quarter-century after Congress passed the Indian Gaming Regulatory Act (IGRA), and identifies the friction points where litigation has arisen in the past in connection with Indian gaming and where it is likely to arise in the future. Tribal gaming is coming under... 2014
Melissa Cottle Indian Land Reform: Justice for All? An Examination of Property Laws Pertaining to the Five Tribes Indians and a New Call for Reform 39 Oklahoma City University Law Review 71 (Spring 2014) Imagine the story of two American Indians living in the state of Oklahoma. Bill is a descendant of full-blood Ponca Indians. Bill's ancestors were horticulturalists who also hunted buffalo in Nebraska and South Dakota. The Ponca Nation was a peaceful one that never waged war with the United States; instead they traded parts of their homelands to... 2014
  INDIAN LAW -- TRIBAL COURTS -- CONGRESS RECOGNIZES AND AFFIRMS TRIBAL COURTS' SPECIAL DOMESTIC VIOLENCE JURISDICTION OVER NON-INDIAN DEFENDANTS. -- THE VIOLENCE AGAINST WOMEN REAUTHORIZATION ACT OF 2013, PUB. L. NO. 113-4, TIT. IX, 127 STAT. 54, 118-26 (T 127 Harvard Law Review 1509 (March, 2014) Violence shapes the lives of American Indian women. By some estimates, sixty percent of all Indian women are assaulted, one third are raped, and forty percent experience domestic violence in their lifetimes. Yet when these crimes occur on tribal land, a jurisdictional loophole allows some perpetrators to escape punishment entirely. Tribal... 2014
  Indian Law -- Tribal Courts -- Congress Recognizes and Affirms Tribal Courts' Special Domestic Violence Jurisdiction over Non-indian Defendants. -- the Violence Against Women Reauthorization Act of 2013, Pub. L. No.113-4, Tit. Ix, 127 Stat. 54, 118-26 (To 127 Harvard Law Review 1509 (March, 2014) Violence shapes the lives of American Indian women. By some estimates, sixty percent of all Indian women are assaulted, one third are raped, and forty percent experience domestic violence in their lifetimes. Yet when these crimes occur on tribal land, a jurisdictional loophole allows some perpetrators to escape punishment entirely. Tribal... 2014
Hon. Gustavo A. Gelpí Jr. Indian Law and the Fba 61-APR Federal Lawyer Law. 3 (April, 2014) The unique legal relationship of the many nations of Native Americans with our federal government is a topic that is greatly ignored by a majority of Americans. The Federal Bar Association (FBA), I'm very proud to say, has always been a leader in educating bench and bar about the many and very transcendental legal issues involving this important... 2014
William J. Bennett Indian Pharmaceutical Patent Law and the Effects of Novartis Ag V. Union of India 13 Washington University Global Studies Law Review 535 (2014) In recent decades, many nations and international organizations have made a concentrated effort to homogenize the laws governing intellectual property. The attempt at standardization, however, has not been free of dissention, particularly with regard to the laws pertaining to pharmaceutical patents. This is due to the continuing tension that exists... 2014
Amy Cordalis , Daniel Cordalis Indian Water Rights: How Arizona V. California Left an Unwanted Cloud over the Colorado River Basin 5 Arizona Journal of Environmental Law & Policy 333 (Fall, 2014) The Colorado River is one of the most important rivers in the world. The river's 1,400-mile journey from the Rocky Mountains to the Sea of Cortez takes on waters from seven states and from the reservations of twenty-eight Indian tribes along the way, 244,000 square miles of river basin in all. The Colorado River is also heavily managed: Its waters... 2014
Tracey A. LeBeau Indigenous Energy Issues on an International Grid 61-APR Federal Lawyer 42 (April, 2014) Indigenous interests in energy and natural resources include a discussion on the a wide range of social and economic statistics. This article takes a step back to ask some leading questions about where there may be nexus points, or gaps, for community leaders, policy makers, and business advisors who work in the field to consider. Even a cursory... 2014
Kristen A. Carpenter , Angela R. Riley Indigenous Peoples and the Jurisgenerative Moment in Human Rights 102 California Law Review 173 (February, 2014) As indigenous peoples have become actively engaged in the human rights movement around the world, the sphere of international law, once deployed as a tool of imperial power and conquest, has begun to change shape. Increasingly, international human rights law serves as a basis for indigenous peoples' claims against states and even influences... 2014
Chidi Oguamanam Indigenous Peoples' Rights at the Intersection of Human Rights and Intellectual Property Rights 18 Marquette Intellectual Property Law Review 261 (Summer 2014) Introduction. 265 I. Indigenous Peoples' Rights in the International Human Rights Framework. 267 A. Beyond Human Rights. 269 B. Three Convenient Frameworks for Indigenous Rights. 270 1. The International Bill of Rights. 271 2. Specific Treaty Instruments. 272 3. Recent Developments - UNDRIP. 277 II. Human Rights and Intellectual Property Rights.... 2014
Kris Olson Indigenous Rights? 75-DEC Oregon State Bar Bulletin 21 (December, 2014) I have been spending quite a bit of time in Iceland recently, and I keep running into elves. On a car trip around the main highway of Iceland, the Ring Road, there are no fewer than 60 documented sites from history that figure in the sagas and legends. Elves, or huldufolk (hidden people), are entrenched in the Icelandic landscape, both geographic... 2014
Alex Dyste It's Hard out Here for an American Indian: Implications of the Patient Protection and Affordable Care Act for the American Indian Population 32 Law & Inequality: A Journal of Theory and Practice 95 (Winter 2014) The storied and often turbulent relationship the United States shares with the nation's indigenous population is tainted with broken promises and marked by indifference. Tracing its origins to initial European contact with the tribes in the late 1400s, federal Indian law is complex, inconsistent, and largely defined by the anomalous trust... 2014
Prof. Elizabeth Barker Brandt It's Worth the Hassle Part Ii: How Does the Baby Veronica Case Impact Cases Involving Indian Children? 57-OCT Advocate 33 (October, 2014) In July 2013, the U.S. Supreme Court issued its second-ever decision interpreting the Indian Child Welfare Act - Adoptive Couple v. Baby Girl. The majority opinion was authored by Justice Alito, who was joined by Justices Roberts, Kennedy, Thomas and Breyer. Justices Thomas and Breyer also each filed separate concurring opinions. Justice Sotomayor... 2014
Valentina Dimitrova-Grajzl, Peter Grajzl, A. Joseph Guse Jurisdiction, Crime, and Development: the Impact of Public Law 280 in Indian Country 48 Law and Society Review 127 (March, 2014) Public Law 280 transferred jurisdiction over criminal and civil matters from the federal to state governments and increased the extent of nontribal law enforcement in selected parts of Indian country. Where enacted, the law fundamentally altered the preexisting legal order. Public Law 280 thus provides a unique opportunity to study the impact of... 2014
Renisa Mawani Law as Temporality: Colonial Politics and Indian Settlers 4 UC Irvine Law Review 65 (March, 2014) I. The Times of Law. 70 II. Indian Settlers in South Africa. 81 Conclusion. 93 2014
James D. Diamond , Attorney, Cacace Tusch & Santagata Law Enforcement: the Relationship Between the Us Government and Indian Tribes-- Update on Criminal Jurisdiction and the Violence Against Women Act 2014 Aspatore 2326374 (April, 2014) The United States government has a unique legal and political relationship with Indian tribal governments established by the Constitution of the United States, treaties, statutes, executive orders, and judicial decisions. In recognition of that special relationship, pursuant to Executive Order 2000, executive departments and agencies are charged... 2014
Sarah Krakoff Law, Violence, and the Neurotic Structure of American Indian Law 49 Wake Forest Law Review 743 (Fall 2014) In American Indian law, judges (and the bureaucratic machinery of which they are a part) have inflicted a largely one-sided story on native peoples. Legal interpretations that dispossessed this country's indigenous peoples of vast swaths of their territory, folded them, without their consent, into the domestic legal order and yet recurrently (if... 2014
Diana Bocarejo Legal Typologies and Topologies: the Construction of Indigenous Alterity and its Spatialization Within the Colombian Constitutional Court 39 Law and Social Inquiry 334 (Spring, 2014) This article examines the different legal articulations between indigenous typologies and topologies, that is, the relationship between someone classified as an indigenous subject, a grantee of minority rights, and the spatial arrangements such as reservations or ancestral territories considered necessary for indigenous cultural survival. I... 2014
Sari Graben Lessons for Indigenous Property Reform: from Membership to Ownership on Nisga'a Lands 47 U.B.C. Law Review 399 (July, 2014) Through its ability to deliver legal certainty, reduce transaction costs, and facilitate taxation, individuated ownership of First Nation land in Canada is expected to provide freedom of choice for individuals as well as serve as a basis for entrepreneurialism necessary for economic development. Furthermore, apprehension about the impacts of... 2014
Patrick Wieland , Thomas F. Thornton Listening to (Some) Barking Dogs: Assessing Hernando De Soto's Recipe for the Development of the Amazon Natives of Peru 30 Harvard Journal on Racial & Ethnic Justice 131 (Spring 2014) The work of Peruvian economist Hernando de Soto is both influential and controversial. His 2000 bestseller The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else posits that to solve poverty in the developing world, the poor need to transition from the extralegal sector to the official economy through formal property... 2014
Andrew Q. Leba Lowering the "Efficacy" Threshold for Section 3(d) of the Indian Patents (Amendment) Act 2005: a Case for a Broader Scope 28 Emory International Law Review 649 (2014) For over thirty years, India, dubbed the world's pharmacy, has enjoyed exponential growth. Its once-nonexistent domestic pharmaceutical industry has transformed into a global manufacturer of generic drugs, providing access to low-cost critical medication for its one billion-plus population. However, 2005 marked the beginning of an extraordinary... 2014
  Manhattan Arrest of Indian Consular Official Sparks Public Dispute Between the United States and India 108 American Journal of International Law 325 (April, 2014) In December 2013, an Indian consular official was arrested in New York City, provoking ongoing outrage and retaliation against the United States by the Indian government. Devyani Khobragade was a seasoned Indian diplomat when she accepted the position of deputy consul general for political, economic, commercial, and women's affairs at the Consulate... 2014
John Weaver, McMaster University Mark Hickford, Lords of the Land: Indigenous Property Rights and the Jurisprudence of Empire, Oxford: Oxford University Press, 2012. Pp. 523. $140.00 (Isbn 978-0-19-956865-9) 32 Law and History Review 205 (February, 2014) Native title materialized from the common law idea that occupants have interests in places they hold. Rival interests could not be settled at law, as they did not originate in a Crown patent but in mere occupancy. When the Crown recognized native title, it had to be cleared by formal process and compensation prior to issuing patents. For distinct... 2014
Edward A. Lowe Mashantucket Pequot Tribe V. Town of Ledyard: the Preemption of State Taxes under Bracker, the Indian Trader Statutes, and the Indian Gaming Regulatory Act 47 Connecticut Law Review 197 (November, 2014) The Indian Tribes of the United States occupy an often ambiguous place in our legal system, and nowhere is that ambiguity more pronounced than in the realm of state taxation. States are, for the most part, preempted from taxing the Indian Tribes, but something unique happens when the state attempts to levy a tax on non-Indian vendors employed by a... 2014
Robert Gloudemans Mass Appraisal of Indian Lands for Federal Buy-back Program 17 Valuation Strategies 18 (July/August, 2014) As evidenced by their use in the Land Buy-Back Program for Tribal Nations, mass appraisal methods can produce sound land valuations when supported by the necessary data. The Land Buy-Back Program for Tribal Nations (Buy-Back program) is a program to purchase individually held Indian lands and return them to tribal ownership. The program originates... 2014
Mitchell G. Enright Michigan V. Bay Mills Indian Cmty., 134 S.ct. 2024 (2014) 90 North Dakota Law Review 191 (2014) In Michigan v. Bay Mills Indian Community, the United States Supreme Court held that the Indian Gaming Regulatory Act (IGRA) did not implicitly or explicitly abrogate the common law doctrine of tribal sovereign immunity so as to allow a state to file a federal suit against an Indian tribe for illegal gambling activity taking place outside of... 2014
Katherine Hinderlie, Rose Petoskey Michigan V. Bay Mills Indian Community (12-515) 61-MAR Federal Lawyer 73 (March, 2014) 1. Can a federal court exercise jurisdiction over a state's suit alleging violations of the Indian Gaming Regulatory Act (IGRA) when the gaming activity is not located on Indian lands? 2. Does tribal sovereign immunity bar a state from suing a tribe in federal court for violations of the IGRA? The IGRA, 25 U.S.C. § 2701 et seq., authorizes an... 2014
Anna O'Brien Misadventures in Indian Law: the Supreme Court's Patchak Decision 85 University of Colorado Law Review 581 (Spring 2014) After today, any person may sue under the Administrative Procedure Act . . . to divest the Federal Government of title to and possession of land held in trust for Indian tribes . . . so long as the complaint does not assert a personal interest in the land. - Justice Sotomayor, dissenting in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.... 2014
Joe Menden Montana Native Rising to Top Spot on Circuit 40-NOV Montana Lawyer 10 (November, 2014) When Brian Pomper arrived in Billings in 1996 to be a law clerk for the Hon. Sidney Thomas, he didn't know a lot about his new boss. He knew that Thomas, then newly appointed to the Ninth Circuit Court of Appeals, was a well-respected Montana lawyer. But Pomper was immediately struck by a few of Thomas' qualities: For someone in such a powerful... 2014
Melina Angelos Healey Montana's Rural Version of the School-to-prison Pipeline: School Discipline and Tragedy on American Indian Reservations 75 Montana Law Review 15 (Winter, 2014) Introduction. 17 I. Foundations of the Pipeline. 18 A. The Nationwide School-to-Prison Pipeline. 18 B. Tribes and Reservations Examined in this Article. 21 II. Background and Approach. 23 A. The Legacy of American Indian Boarding Schools and Educational Segregation. 23 III. The Data: The Presence of Pipeline Indicators in Montana. 25 A. The Harmful... 2014
Shin Imai , Ashley Stacey Municipalities and the Duty to Consult Aboriginal Peoples: a Case Comment on Neskonlith Indian Band V Salmon Arm (City) 47 U.B.C. Law Review 293 (January, 2014) The duty to consult and accommodate has become one of the most important principles of Canadian Aboriginal law. Since Haida Nation v British Columbia (Minister of Forests), the Supreme Court of Canada has sought to clarify the boundaries of consultation in order to ensure that developments affecting Aboriginal rights proceed with a degree of... 2014
Kate Shearer Mutual Misunderstanding: How Better Communication Will Improve the Administration of the Indian Child Welfare Act in Texas 15 Texas Tech Administrative Law Journal 423 (Summer, 2014) I. Introduction. 423 II. Background: A Juxtaposition of the Primary Goals for Removed Children Under the Indian Child Welfare Act and Under the Texas Department of Family and Protective Services. 425 A. The Goals of Child Protective Services Following Removal. 425 1. Best Interests of the Child. 425 2. Permanency Plan. 426 3. Minimum Sufficient... 2014
Neha Bhat 'My Name Is Khan' and I Am Not a Terrorist: Intersections of Counter Terrorism Measures and the International Framework for Refugee Protection 15 San Diego International Law Journal 299 (Spring 2014) I. Introduction: Terrorism in the New World Order. 300 II. One Man's Terrorist, Another's Freedom Fighter: Definitional Challenges. 305 A. Defining Terrorism: Elements of Crime. 305 B. Generic Definition of Terrorism: From the League of Nations to the UN. 306 C. Terrorism: Specific Conventions. 308 D. Terrorism: Regional Conventions. 308 E.... 2014
Rachel Awan Native American Oral Traditional Evidence in American Courts: Reliable Evidence or Useless Myth? 118 Penn State Law Review 697 (Winter 2014) American history is rife with conflict between Native American cultures and the Anglo-American legal system. When Native American groups bring claims in federal court, they face a host of biases that fail to consider their distinctive cultural background. One such bias concerns the use of oral traditional evidence as testimony at trial. Because... 2014
William H. Howery III Native Village of Eyak V. Blank: Fish Is Best Rare; Justice,not So Much 44 Golden Gate University Law Review 47 (April, 2014) Treat the earth well: it was not given to you by your parents; it was loaned to you by your children. Archaeological evidence shows the Chugach people began inhabiting the Copper River Delta and coastal lands along the Prince William Sound inlet of the Gulf of Alaska when the glaciers of the last ice age receded. The Chugach have always been... 2014
Ralph Smith Native Village of Point Hope V. Jewell: Analyzing the Environmental Impact of Uncertain Quantities of Oil Production 28 Tulane Environmental Law Journal 137 (Winter 2014) I. Overview. 137 II. Background. 138 A. Considering the Environment in the Offshore Oil and Gas Development Process. 138 B. Judicial Review of an Agency's Environmental Analysis. 140 III. The Court's Decision. 141 A. Essential Information in the FEIS. 141 B. Oil Production Estimate. 142 C. Judge Rawlinson's Dissent. 144 IV. Analysis. 145 V.... 2014
Troy A. Eid No Surrender: Fighting for Native American Justice 9 FIU Law Review 211 (Spring 2014) EDITOR'S NOTE: This essay is excerpted from the Keynote Remarks of the Honorable Troy A. Eid before the FIU Law Review's 2014 Symposium, From War and Removal to Resurgence: The Legal and Political History of Florida Tribal Governments, held at the Florida International University College of Law on February 28, 2014. Thanks very much to the Law... 2014
  Nsr General Permits Proposed for Minor Sources in Indian Country 24 No.2 Air Pollution Consultant 2.1 (2014) On January 14, 2014 (79 FR 2546-2573), EPA proposed new source review (NSR) general permits for new and modified minor sources located in Indian Country. General permits streamline the preconstruction permitting of new or modified minor sources because they involve the issuance of one permit that can apply to similar sources throughout the country.... 2014
Zachary Mason Nuclear Intentions and Implied Preemption: How Entergy Nuclear Vermont Yankee, Llc V. Shumlin Gives Indian Point a Fighting Chance to Stay in Business 3 American University Business Law Review 197 (2014) The New York State Department of Environmental Conservation (NYSDEC) has denied subsidiaries of the Entergy Corporation a Clean Water Act Section 401 Water Quality Certificate for the cooling systems at the Indian Point Energy Center. This action effectively forces Entergy to construct cooling towers to continue operating, and might force Entergy... 2014
Fahad Ahmad Bishara Paper Routes: Inscribing Islamic Law Across the Nineteenth-century Western Indian Ocean 32 Law and History Review 797 (November, 2014) Sometime during the middle of the nineteenth century, a correspondent from the interior of Oman wrote to the jurist Sa'id bin Khalfan Al-Khalili (c. 1811-70) with an observation: The Mazru'is have wealth on the Swahili coast [<>] and wealth in Oman. This in itself was no surprise: the Mazru'is, along with scores of other Arab... 2014
Andrea Wallace Patriotic Racism: an Investigation into Judicial Rhetoric and the Continued Legal Divestiture of Native American Rights 8 DePaul Journal for Social Justice 91 (Winter 2014) It is difficult to get a man to understand something when his salary depends on his not understanding it.-- Upton Sinclair Americans live in a country where race was once legally institutionalized. In fact, it was only 50 years ago that the United States' legal system officially ceased to operate as a mechanism that explicitly condoned racism.... 2014
  Permitting Date Extended for Oil and Gas Sector Minor Sources in Indian Country 24 No.5 Air Pollution Consultant 2.46 (2014) On June 16, 2014 (79 FR 34231-34240), EPA extended from September 2, 2014 to March 2, 2016 the date upon which new or modified true minor sources in the oil and gas sector that are located in Indian country from must begin obtaining preconstruction new source review (NSR) permits. The final rule also extends the date upon which minor modifications... 2014
Katherine A. Kelter Pirate Patents: Arguing for Improved Biopiracy Prevention and Protection of Indigenous Rights Through a New Legislative Model 47 Suffolk University Law Review 373 (2014) Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, . . . [and] knowledge of the properties of fauna and flora . . . .... 2014
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