Steven L. Mangold Progress in Self-determination: Navigating Funding for Isda Contracts after Salazar V. Ramah Navajo Chapter 38 American Indian Law Review 261 (2013-2014) In the recently decided Salazar v. Ramah Navajo Chapter, the Supreme Court held that when Congress appropriates a sufficient amount of funds for any one contractor for contract support costs under a lump-sum appropriation for contracts under the Indian Self-Determination and Education Assistance Act (ISDA), but an insufficient amount to cover all... 2014
Joanna Woolman , Sarah Deer Protecting Native Mothers and Their Children: a Feminist Lawyering Approach 40 William Mitchell Law Review 943 (2014) I. Introduction. 944 II. Background: Native American Experiences with Child Protective Services. 947 A. Precolonial Native Motherhood. 947 B. Colonization and Native Mothers. 950 1. Missionary Belief Systems About the Cultural Inferiority of Native Women's Mothering Skills. 950 2. Native Mothers and the Early American Child Protection System. 951... 2014
Stefan Kirchner Protecting Sea Lanes and Maritime Installations in the Western Indian Ocean Against Terrorism and Piracy: Beyond Atalanta 22 Willamette Journal of International Law and Dispute Resolution 31 (2014) I. Introduction. 31 II. Macro-Approaches. 34 A. Social Conditions. 34 B. Law Enforcement. 35 C. Denial of Sanctuary. 36 III. Micro-Approaches. 37 A. Ships and Fixed Installations: Defensive Measures. 37 1. Illumination. 37 2. Steering. 37 3. Firearms on Board Ships. 38 4. A Role for Private Military and Security Companies?. 40 5. Non-Lethal... 2014
Mark Anderson Protecting the Rights of Indigenous and Multicultural Children and Preserving Their Cultures in Fostering and Adoption 52 Family Court Review Rev. 6 (January, 2014) This article examines transracial/cultural placement of children for fostering and adoption as discussed within the context of expert evidence in applications for permanent placement. Transracial/cultural placement raises the issues of attachment and identity. The undesirability of the child being raised apart from the natural biological family's... 2014
  Psd Regulations Revised to Allow Delegation of Program to Indian Tribes 24 No.4 Air Pollution Consultant 2.21 (2014) In an April 21, 2014 final rule (79 FR 22028-22032), EPA revised the federal prevention of significant deterioration (PSD) regulations to permit the agency to delegate the program to Indian tribes. Previously, the regulatory language in 40 CFR §52.21 limited the agency's ability to delegate the federal PSD program to Indian tribes. The final rule... 2014
Jeremiah Chin RED LAW, WHITE SUPREMACY: CHEROKEE FREEDMEN, TRIBAL SOVEREIGNTY, AND THE COLONIAL FEEDBACK LOOP 47 John Marshall Law Review 1227 (Summer, 2014) I. Introduction. 1228 II. Conflict in Context: Historical origins of Cherokee Freedmen and Pending Litigation. 1230 A. Slavery and Reconstruction in the Cherokee Nation and the United States. 1231 1. Slavery in the Cherokee Nation and the beginnings of African enslavement. 1231 2. Removal and Civil War Alliances. 1234 3. Cherokee by Blood and the... 2014
Reid Peyton Chambers Reflections on the Changes in Indian Law, Federal Indian Policies and Conditions on Indian Reservations since the Late 1960s 46 Arizona State Law Journal 729 (Fall 2014) I want to begin by thanking my longtime friend and colleague Bob Clinton for his too generous introduction, and to Bob and the faculty at the Law School for inviting me to give this lecture in honor of Judge Canby. I also want to thank my many friends and colleagues in the audience who have sat through water rights negotiations in Arizona with me... 2014
Leroy “J.R.” LaPlante Remarks on the 2014 Rural Practice Symposium: Indian Country & Rural South Dakota 59 South Dakota Law Review 463 (2014) Thank you, I am always really humbled when I am invited back to USD. I have been back to the law school a couple of times since I graduated and given some talks during the Indian Law Symposium and other events, and I am always glad to be here. I want to thank the Law Review for inviting me. From what I understand, you have put together a great... 2014
Michael H. LeRoy Remedies for Unlawful Alien Workers: One Law for the Native and for the Stranger Who Resides in Your Midst? An Empirical Perspective 28 Georgetown Immigration Law Journal 623 (Spring, 2014) In Hoffman Plastic Compounds, Inc. v. NLRB, the Supreme Court ruled that the National Labor Relations Board (NLRB) could not order back pay for an unlawful alien whose employer fired him for supporting a union. While the majority reasoned that the Immigration Reform and Control Act of 1986 (IRCA) would be undermined by the Board's remedy, four... 2014
David E. Selden Researching American Indian Tribal Law 43-FEB Colorado Lawyer 51 (February, 2014) In 1997, U.S. Supreme Court Justice Sandra Day O'Connor made reference to the importance of tribal sovereignty and tribal law, stating: Today in the United States, we have three types of sovereign entities--the federal government, the States, and the Indian tribes. Each of the three sovereigns has its own judicial system, and each plays an... 2014
Ben Juratowitch Resolution of Disputes Involving the Rights of Indigenous Peoples and Extraction of Natural Resources by Foreign Investors 108 American Society of International Law Proceedings Proc. 5 (April 7-12, 2014) The question put to me concerns a perceived tension between the state duty to protect human rights, specifically the rights of indigenous peoples, and other state obligations such as those owed to foreign investors under investment treaties. James Anaya's final thematic report as Special Rapporteur on the Rights of Indigenous Peoples noted that... 2014
Brian Upton RETURNING TO A TRIBAL SELF-GOVERNANCE PARTNERSHIP AT THE NATIONAL BISON RANGE COMPLEX: HISTORICAL, LEGAL, AND GLOBAL PERSPECTIVES 35 Public Land & Resources Law Review 51 (2014) I. Introduction. 53 II. A Bison Refuge Carved Out of Treaty-Reserved Land: Background on the Confederated Salish and Kootenai Tribes and the National Bison Range Complex. 56 A. The Confederated Salish and Kootenai Tribes: A People of Vision. 57 B. The National Bison Range Complex61 III. The Importance to Tribal Citizens of Bison and the National... 2014
  Revisions Made to Indian Country Minor Source Nsr Program 24 No.5 Air Pollution Consultant 2.35 (2014) In a May 30, 2014 final rule (79 FR 31035-31045), EPA revised the new source review (NSR) permitting requirements for minor sources located in Indian country. First, the final rule expands the list of emission units and activities that are exempt from the tribal minor source NSR program. Second, the final rule adds definitions of begin... 2014
Allison M. Dussias Room for a (Sacred) View? American Indian Tribes Confront Visual Desecration Caused by Wind Energy Projects 38 American Indian Law Review 333 (2013-2014) I. By the Dawn's Early Light: The Wampanoag Tribe and the Cape Wind Energy Project. 336 A. The Wampanoag Tribe of Aquinnah and Nantucket Sound. 337 B. The Cape Wind Energy Project and Federal Regulatory Requirements. 340 C. The Tribe and the CWEP Federal Approval Process. 348 1. The Permit Application and NEPA Review. 348 2. NHPA Section 106... 2014
Susan Bibler Coutin , Justin Richland , Véronique Fortin Routine Exceptionality: the Plenary Power Doctrine, Immigrants, and the Indigenous under U.s. Law 4 UC Irvine Law Review 97 (March, 2014) I. Plenary Power and the Fullness of Law. 101 II. Originary Moments. 106 III. Routine Exceptionality, or Hiding in Plain Sight. 115 2014
Amelia Coates Sacred Rain Arrow: Honoring the Native American Heritage of the States While Balancing the Citizens' Constitutional Rights 38 American Indian Law Review 501 (2013-2014) Many states' histories and traditions are steeped heavily in Native American culture, which explains why tribal imagery and symbolism are prevalent in official state paraphernalia such as license plates, flags, and state seals. Problems arise for states using Native American artwork when a citizen takes offense to the religious implications of... 2014
Brenda Reddix-Smalls Satellite Remote Sensing and Database Management: Who Owns the Digitized Information Relating to Indigenous People and Their Artifacts? 37 North Carolina Central Law Review Rev. 1 (2014) Recently, two scientists used Google Earth satellite imagery to estimate the area of the fields and the size of the village of a remote tribe in Lowland South America, surrounding the Amazon Basin. This is reportedly one of the last indigenous societies experiencing limited contact with the outside world. The remote surveillance is purportedly the... 2014
Sam Grey Self-determination, Subordination, and Semantics: Rhetorical and Real-world Conflicts over the Human Rights of Indigenous Women 47 U.B.C. Law Review 495 (July, 2014) Insofar as Indigenous women have advocated for a human rights-based approach to gender injustice, and insofar as Indigenous nations have posited collective human rights as necessary for the protection of cultural distinction, these projects should be reconcilable. It is possible, in fact, to conceptualize both as a single Indigenous... 2014
Gregory S. Fisher , Erin “Faith” Rose Selling Ice in Alaska: Employment Preferences and Statutory Exemptions for Alaska Native Corporations 40 Years after Ancsa 31 Alaska Law Review Rev. 1 (June, 2014) In 1971, Congress enacted the Alaska Native Claims Settlement Act (ANCSA) in order to settle land disputes between Alaska Natives and the federal government. ANCSA established Alaska Native Corporations (ANCs), which were tasked with managing settlement funds to provide for the health, education, and economic welfare of Alaska Natives. To enable... 2014
Marisol León Silenced by Bureaucratic Adjudication: Mesoamerican Indigenous Language Speakers and Their Right to Due Process of Law 30 Harvard Journal on Racial & Ethnic Justice 339 (Spring 2014) IF A PERSON CANNOT UNDERSTAND WHAT IS HAPPENING IN THE COURTROOM PROCEEDING, AN UNFAIR RESULT MIGHT OCCUR. AND THAT IS CONTRADICTORY TO WHAT WE WANT OUR COURTS TO DO: ADMINISTER JUSTICE, FAIRLY AND IMPARTIALLY. JUDGE RICHARD S. BROWN While the federal constitution fails to recognize a litigant's right to an interpreter, several of its... 2014
  Six Additional Nsr General Permits Proposed for Minor Sources in Indian Country 24 No.6 Air Pollution Consultant 4.1 (2014) On July 17, 2014 (79 FR 41846-41871), EPA proposed six additional new source review (NSR) general permits for new or modified minor sources located in Indian country. The source categories covered by the proposed general permits are: 1) concrete batch plants, 2) boilers, 3) stationary spark ignition engines, 4) stationary compression ignition... 2014
Brandon Hammer Smooth Sailing: Why the Indian Film Industry Remains Extremely Successful in the Face of Massive Piracy 5 Harvard Journal of Sports & Entertainment Law 147 (Winter, 2014) C1-3Table of Contents I. Introduction. 148 II. India's Robust Copyright Regime. 155 A. Ample Protection. 156 B. A Host of Remedies. 159 C. Concerns About the Regime. 165 III. Lack of Enforcement. 167 A. The Ineffectiveness of Judicial Proceedings. 167 B. Lack of Police Cooperation. 170 C. Lack of International Cooperation. 171 IV. Enforcement-Based... 2014
Marc Galanter Snakes and Ladders: Suo Moto Intervention and the Indian Judiciary 10 FIU Law Review 69 (Fall 2014) Legal systems are hierarchical constructions, some taller and deeper, some shallower, and commonly portrayed as an orderly pyramid. Sometimes an incident in this hierarchic landscape reminds us that, as in a game of snakes and ladders, there may be startling and unexpected connections (and disconnects) between different locations in the system. I... 2014
Rehan Abeyratne Socioeconomic Rights in the Indian Constitution: Toward a Broader Conception of Legitimacy 39 Brooklyn Journal of International Law L. 1 (2014) Introduction. 2 I. Theoretical Framework. 8 A. Justice as Fairness. 8 B. The Constraint of Public Reason. 14 1. A Shift in Rawlsian Thought. 14 2. Public Reason and the Supreme Court. 16 C. Socioeconomic Rights as Constitutional Rights. 17 1. The Democratic Objection. 20 2. The Contractarian Objection. 22 II. The Framing of the Indian Constitution.... 2014
Matthew Deisen STATE V. JIM: A NEW ERA IN WASHINGTON'S TREATMENT OF THE TRIBES? 38 American Indian Law Review 101 (2013-2014) I. Introduction. 101 II. Background. 105 A. The Treaty. 107 B. Treaty Interpretation. 112 C. Fishing Sites and the Right of Access. 114 III. Enemy of the State: A History of Washington and Its Tribes. 117 A. Washington, Tribes, and Fish. 118 B. State v. Jim. 122 IV. Criminal Jurisdiction in Indian Country. 124 A. The Federal/Tribal Relationship.... 2014
Erin Marie Erhardt States Versus Tribes: the Problem of Multiple Taxation of Non-indian Oil and Gas Leases on Indian Reservations 38 American Indian Law Review 533 (2013-2014) Taxation of business operations on Indian land presents a murky issue, particularly when the business operations involve non-tribal members engaging in business on Indian lands. One context where this issue often arises is in the field of natural resources. Because oil and gas are such important commodities, not just on and off American Indian... 2014
Jane Burke The "Baby Veronica" Case: Current Implementation Problems of the Indian Child Welfare Act 60 Wayne Law Review 307 (Spring, 2014) Save Veronica has become a common phrase in the American South over the past year. It appears on the signs of local businesses, is stamped on light purple bracelets, and is the rallying cry for fundraisers, candlelight vigils, and cupcake sales on holidays. It is the topic of many newspaper articles and television news broadcasts and was recently... 2014
Eleanor Marie Lawrence Brown The Blacks Who "Got Their Forty Acres": a Theory of Black West Indian Migrant Asset Acquisition 89 New York University Law Review 27 (April, 2014) The impediments to property acquisition and market success among African Americans are a significant area of inquiry in legal scholarship. The prevailing narrative on the historical relationship between Blacks and property is overwhelmingly focused on loss. However, in the political science, economics, and sociology literatures there is a... 2014
Curtis G. Berkey , Managing Partner, Berkey Williams LLP The California Life Protection Act and Indian Tribes: a New Era of Collaboration in Protecting Marine and Cultural Resources 2014 Aspatore 2326379 (April, 2014) For much of the history of Indian tribes in California, the US Supreme Court's characterization of states as the deadliest enemies of the tribes has been all too accurate. California's Indian policies have run the gamut from physical extermination of Indian people; assimilation; indifference; and, in the latter decades of the twentieth century, a... 2014
Curtis G. Berkey , Managing Partner, Berkey Williams LLP THE CALIFORNIA LIFE PROTECTION ACT AND INDIAN TRIBES: A NEW ERA OF COLLABORATION IN PROTECTING MARINE AND CULTURAL RESOURCES 2014 Aspatore 2326379 (April, 2014) For much of the history of Indian tribes in California, the US Supreme Court's characterization of states as the deadliest enemies of the tribes has been all too accurate. California's Indian policies have run the gamut from physical extermination of Indian people; assimilation; indifference; and, in the latter decades of the twentieth century, a... 2014
Winston P. Nagan , Craig Hammer The Conceptual and Jurisprudential Aspects of Property in the Context of the Fundamental Rights of Indigenous People: the Case of the Shuar of Ecuador 58 New York Law School Law Review 875 (2013/2014) The conceptual and jurisprudential basis of property in indigenous culture differs from notions of property, especially private property, in the modern economic order. Private property is a central and pivotal precept in the modern economic order; it holds a place of primacy and deference. In part, this is because private property functions... 2014
Shawn E. Regan , Terry L. Anderson The Energy Wealth of Indian Nations 3 LSU Journal of Energy Law & Resources 195 (Fall, 2014) Economists have long sought to explain why some nations are rich while others are poor. Although the recipe for growth remains a matter of debate, most agree that secure property rights and a stable rule of law are necessary ingredients for economic growth. Property rights provide incentives to generate wealth, encourage resource stewardship, and... 2014
Sarah Melz The Epa, Outer Continental Shelf Sources, and Deference Resisting Environmental Destruction on Indigenous Lands 20 Journal of Environmental and Sustainability Law 133 (Spring, 2014) The Environmental Protection Agency (EPA) receives much criticism. There are people and groups who think the agency puts too many unnecessary restrictions on businesses, an argument that is more charged than usual during the current strained economic situation in the United States. Conversely, there are those who believe the EPA does not go far... 2014
Joseph William Singer The Indian States of America: Parallel Universes & Overlapping Sovereignty 38 American Indian Law Review Rev. 1 (2013-2014) We live in the United States of America. Or do we? Look at a typical map of the United States. It shows the external borders of the country and, of course, the states, which are pretty important in our political system, as the meeting of the Electoral College following the 2012 popular election reminded us. This is the map most of us grew up with.... 2014
Hon. Elizabeth Ann Kronk Warner The Miner's Canary Foretelling the Fate of the World: Climate Change and Native Communities 61-APR Federal Lawyer Law. 4 (April, 2014) At this very moment, entire communities in the United States are threatened with total annihilation. Increasingly intense super storms and massive erosion menace these communities, and the possibility of being swept into the ocean always looms large on the horizon. The scene is not part of a screenplay for a major Hollywood production, but,... 2014
Lauren Sampson The Obscenities of this Country : Canada V. Bedford and the Reform of Canadian Prostitution Laws 22 Duke Journal of Gender Law & Policy 137 (Fall 2014) In February 2002, following a search for illegal weapons that turned up the belongings of several missing women, the Vancouver Police Department laid charges of first-degree murder against Robert Pickton for the deaths of Sereena Abotsway and Mona Wilson, two Aboriginal women working as street-level prostitutes in Vancouver's Downtown Eastside.... 2014
F. Michael Willis The Power to Tax Economic Activity in Indian Country 28-SPG Natural Resources & Environment Env't 8 (Spring, 2014) As Chief Justice John Marshall wrote nearly two centuries ago, the power to tax involves the power to destroy. McCulloch v. Maryland, 17 U.S. 316, 431 (1819). In McCulloch, the Court held that a state tax on an instrumentality created by Congress was unconstitutional. Not long after McCulloch, the Supreme Court invalidated the application of a... 2014
Justin Nyberg The Promise of Indian Water Leasing: an Examination of One Tribe's Success at Brokering its Surplus Water Rights 55 Natural Resources Journal 181 (Fall 2014) After reaching water rights settlements, a number of Native American tribes find themselves with rights to more water than their reservations or pueblo communities presently need. As climate change exacerbates drought conditions in the western United States and demand for water increases, some tribes have leased these surplus water rights to public... 2014
Marcia A. Zug The Real Impact of Adoptive Couple V. Baby Girl: the Existing Indian Family Doctrine Is Not Affirmed, but the Future of the Icwa's Placement Preferences Is Jeopardized 42 Capital University Law Review 327 (Spring, 2014) On July 3, 2013, Dusten Brown, his wife-Robin-and Brown's parents-Tommy and Alice Brown-filed actions to adopt Baby Veronica, the four-year-old girl at the heart of the United States Supreme Court's recent decision in Adoptive Couple v. Baby Girl. The Browns based their adoption petitions on the Indian preference provisions of the Indian Child... 2014
SGM (Retired) Gunther M. Nothnagel The Second Sgm John A. Nicolai Leadership Lecture 219 Military Law Review 247 (Spring, 2014) It is certainly a pleasure for me to be here today. You will have to pardon me; it is a bit of nostalgia for me to be here. I first arrived here so many years back, it is kind of hard to remember now--it was 1972 when Charlottesville--the outer end of Charlottesville is now where K-Mart is, if that tells you anything. It has grown. I mean, it is... 2014
Matthew L.M. Fletcher The Seminole Tribe and the Origins of Indian Gaming 9 FIU Law Review 255 (Spring 2014) The Seminole Tribe of Florida (Tribe) has played, perhaps, the most important role in the origins and development of Indian gaming in the United States of any single tribe. The Tribe opened the first tribally owned, high stakes bingo hall in 1979. The Tribe, in 1981, was involved in one of the earliest lower court decisions, which formed the... 2014
M. Gatsby Miller THE SHRINKING SOVEREIGN: TRIBAL ADJUDICATORY JURISDICTION OVER NONMEMBERS IN CIVIL CASES 114 Columbia Law Review 1825 (November, 2014) Tribal jurisdiction over nonmembers is limited to two narrow areas: consensual economic relationships between tribes and nonmembers, and nonmember activity that threatens tribal integrity. Even within these two narrow fields, the Supreme Court has stated that tribal adjudicatory power over nonmembers--the authority to decide legal rights of... 2014
J. Matthew Martin The Supreme Court Erects a Fence Around Indian Gaming 39 Oklahoma City University Law Review 45 (Spring 2014) On June 18, 2012, the United States Supreme Court established an almost insurmountable boundary for American Indian tribes seeking to establish Indian gaming on lands newly taken into trust by the Secretary of the Interior. In Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, the Supreme Court allowed a private suit to proceed... 2014
Shawn L. Murphy The Supreme Court's Revitalization of the Dying "Existing Indian Family" Exception 46 McGeorge Law Review 629 (2014) C1-2Table of Contents I. Introduction. 630 II. Background: What is the Indian Child Welfare Act and the Existing Indian Family Exception?. 631 A. History of ICWA. 631 B. To Whom and When Does ICWA Apply?. 632 C. What Does ICWA Provide?. 633 1. ICWA as a Jurisdictional Statute. 633 2. ICWA Provides Special Protections for Indian Parents and... 2014
Renisa Mawani, Iza Hussin The Travels of Law: Indian Ocean Itineraries 32 Law and History Review 733 (November, 2014) I believe that no country ever stood so much in need of a code of laws as India; and I believe also that there never was a country in which the want might so easily be supplied. I said that there were many points of analogy between the state of that country after the fall of the Mogul power, and the state of Europe after the fall of the Roman... 2014
Rohit De, Department of History, Yale University Tools of Justice: Non-discrimination and the Indian Constitution. By Kalpana Kannabiran. New Delhi: Routledge, 2012. 505 Pp. Rs 995, $105.00 Cloth 48 Law and Society Review 687 (September, 2014) The Indian Constitution promulgated in 1950 created, in the words of its chief draftsman Dr Ambedkar, a life of contradictions. It ushered in universal adult suffrage and a judicially enforced bill of rights to a population that was marked by stark inequalities of caste, gender, religion, and class. The constitutional values were not part of the... 2014
Lindsay Short Tradition Versus Power: When Indigenous Customs and State Laws Conflict 15 Chicago Journal of International Law 376 (Summer 2014) Indigenous societies have received increasing attention in recent years. Notably, scholars and the international law community have gradually, but increasingly, recognized indigenous groups' autonomy in past decades. Against this backdrop, indigenous groups have largely continued to maintain their own distinct customs and practices, including their... 2014
Matthew L.M. Fletcher , Kathryn E. Fort , Dr. Nicholas J. Reo Tribal Disruption and Indian Claims 112 Michigan Law Review First Impressions 65 (January, 2014) Legal claims are inherently disruptive. Plaintiffs' suits invariably seek to unsettle the status quo. On occasion, the remedies to legal claims can be so disruptive--that is, impossible to enforce or implement in a fair and equitable manner--that courts simply will not issue them. In the area of federal Indian law, American Indian tribal claims not... 2014
Jeanette Wolfley Tribal Environmental Programs: Providing Meaningful Involvement and Fair Treatment 29 Journal of Environmental Law & Litigation 389 (2014) Introduction. 390 I. Background of Tribal Environmental Authority. 393 II. Policies Supporting Meaningful Involvement and Fair Treatment. 399 A. Providing Good Governance. 400 B. Respecting the Interests of Community Members. 402 C. Protecting and Promoting Tribal Sovereignty. 405 III. Defining Meaningful Involvement and Fair Treatment . 409 A.... 2014
Gregory S. Arnold Tribal Law and Order Act and Violence Against Women Act: Enhanced Recognition of Inherent Tribal Sovereignty Creates Greater Need for Criminal Defense Counsel in Indian Country 61-FEB Federal Lawyer Law. 4 (January/February, 2014) Starting with the Indian Civil Rights Act of 1968 (the ICRA), Native American Indian tribes were limited in sentencing Indian criminal defendants to a maximum of only six months in jail and / or a $500 fine, including murder and other violent felonies, and had no criminal authority over non-Indians. This was first strengthened by amendment in... 2014
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