Christopher Deluzio TRIBES AND RACE: THE COURT'S MISSED OPPORTUNITY IN ADOPTIVE COUPLE V. BABY GIRL 34 Pace Law Review 509 (Spring, 2014) Adoption policy in the United States has unequivocally embraced the idea that every child, irrespective of race, has an equal right to a loving home and supportive parents. To that end, public adoption agencies and family courts are largely barred from considering the race of either the child or the couple seeking adoption when deciding custody and... 2014
Joseph G.E. Gousse Waiting for Gluskabe: an Examination of Maine's Colonialist Legacy Suffered by Native American Tribes under the Maine Indian Claims Settlement Act of 1980 66 Maine Law Review 535 (2014) I. Introduction II. A Brief History of Colonial, Federal, and State Intercourse with Native Americans in the United States, Massachusetts, and Post-1820 Maine A. European Conquest and the American Non-Intercourse Act of 1790 B. A Brief History of Tribal Land Transactions in Massachusetts and Maine C. Road to Restitution?: Paving the Path for the... 2014
Marc Galanter , Manuel A. Gómez Waiting for Mendeleev: the Tangle of Indigenous Law 10 FIU Law Review Rev. 1 (Fall 2014) [On learning about Mendeleev's table] For the first time I saw a medley of haphazard facts fall into line and order. All the jumbles and recipes and hotchpotch of the inorganic chemistry of my boyhood seemed to fit themselves into the scheme before my eyes - as though one were standing beside a jungle and it suddenly transformed itself into a... 2014
Helaman “Helo” Hancock Welcome from the Chair of the Indian Law Section 57-OCT Advocate 26 (October, 2014) Treat all men alike . give them all the same law. Give them all an even chance to live and grow. You might as well expect the rivers to run backward as that any man who is born a free man should be contented when penned up and denied liberty to go where he pleases. We only ask an even chance to live as other men live. We ask to be recognized as... 2014
Jean Dennison , University of North Carolina, Chapel Hill Whitewashing Indigenous Oklahoma and Chicano Arizona: 21st-century Legal Mechanisms of Settlement 37 PoLAR: Political and Legal Anthropology Review 162 (May, 2014) This article interrogates the various tactics settler colonial legal systems use in establishing and entrenching authority over territories. By comparing a recent Osage Nation reservation court case with Arizona House Bill (HB) 2281, enacted into law as Ariz. Rev. Stats. § 15-112, which has been used to ban Mexican American/Raza Studies (MARS) from... 2014
SANFORD LEVINSON Who Counts? "Sez Who?" 58 Saint Louis University Law Journal 937 (Summer 2014) When Professor Joel Goldstein called to offer me the opportunity to deliver the 2013 Childress Lecture, I was, of course, immensely flattered, albeit immediately intimidated when he added that it would include the participation as well of a daunting group of commentators. That did not, of course, prevent me from accepting, though it did lead to... 2014
Stacy L. Leeds , Erin S. Shirl Whose Sovereignty? Tribal Citizenship, Federal Indian Law, and Globalization 46 Arizona State Law Journal 89 (Spring 2014) This Article is adapted from a speech given by Stacy Leeds at the Sixth Annual Canby Lecture Series held at Arizona State University's Sandra Day O'Connor College of Law. Stacy Leeds is the Dean of the University of Arkansas Law School, which recently launched a new Indigenous Food and Agriculture Initiative to complement their long-standing LL.M.... 2014
Julie Sobotta Kane Why Applying the Indian Child Welfare Act Is Worth the Hassle 57-OCT Advocate 28 (October, 2014) After practicing for many years in the area of Indian Law, I often heard complaints about the application of the Indian Child Welfare Act (ICWA) in child protection cases. The Act requires state courts to notify Indian Tribes when members of their tribes are subjects of a proceeding. It also requires higher standards of proof when placing children... 2014
Zachary Diionno , Sommerset Wong Winner, Best Appellate Brief in the 2013 Native American Law Student Association Moot Court Competition 38 American Indian Law Review 305 (2013-2014) I. Does the Cush-Hook Nation, a tribe in existence since time immemorial, maintain aboriginal title to their ancestral lands situated in modern-day Kelley Point Park when that title has never been extinguished? II. Does Oregon have criminal jurisdiction to regulate the use of, and to protect, the culturally and religiously significant tribal... 2014
Matthew L.M. Fletcher (Re)solving the Tribal No-forum Conundrum: Michigan V. Bay Mills Indian Community 123 Yale Law Journal Online 311 (11/18/2013) Michigan v. Bay Mills Indian Community, a dispute over a controversial off-reservation Indian casino, is the latest opportunity for the Supreme Court to address the doctrine of tribal sovereign immunity. The Court could hand Michigan a big win by broadly abrogating tribal immunity, and in turn wreak havoc on modern tribal governance. Alternately,... 2013
Hope M. Babcock [This] I Know from My Grandfather: the Battle for Admissibility of Indigenous Oral History as Proof of Tribal Land Claims 37 American Indian Law Review 19 (2012-2013) A major obstacle indigenous land claimants must face is the application of federal evidentiary rules, like the hearsay doctrine, which block the use of oral history to establish legal claims. It is often oral history and stories that tribes rely upon as evidence to support their claims, reducing substantially the likelihood of a tribe prevailing.... 2013
Kelsey Vujnich A Brief Overview of the Indian Child Welfare Act, State Court Responses, and Actions Taken in the past Decade to Improve Implementation Outcomes 26 Journal of the American Academy of Matrimonial Lawyers 183 (2013) Since the Indian Child Welfare Act (hereafter ICWA) was adopted in 1978 by the U.S. Congress, various courts have struggled with its application, at times coming to different conclusions regarding various terms in the statute and producing different outcomes by state. Differences among state court decisions range from philosophical differences as... 2013
David E. Wilkins A Most Grievous Display of Behavior: Self-decimation in Indian Country 2013 Michigan State Law Review 325 (2013) Introduction. 325 I. Deciding Who Belongs and on What Grounds. 327 II. The Dismembering Begins. 330 III. Where Do We Go from Here?. 334 Conclusion. 338 Vine Deloria, Jr., the greatest indigenous philosopher of his day, wrote Custer Died for Your Sins: An Indian Manifesto in 1969. It was a spirited polemic that both galvanized and inspired Native... 2013
Carole Goldberg A Native Vision of Justice 111 Michigan Law Review 835 (April, 2013) The Surrounded. By D'Arcy McNickle. New York: Dodd Mead. 1936. (University of New Mexico Press 1978 ed.). Pp. 297. $23.95. That's the way it goes now; the old law is not used and nobody cares about the new. Old Modeste The Surrounded (p. 207) He could tell himself, as he stood there, not only listening but seeing, that of all joys, there was none... 2013
Adam R. Chang A Non-native Approach to Decolonizing Settler Colonialism Within Hawaii's Lgbt Community 14 Asian-Pacific Law and Policy Journal 132 (2013) Introduction. 132 I. Civil Unions: The Marketing of Marriage Equality and Potential Harm to Native Hawaiian Culture. 133 II. Don't Ask, Don't Tell: How the LGBT Movement Can Address the U.S. Military Presence in Hawai'i. 139 III. Aikne and Mh: Distinct Sexual Identities in Hawai'i. 142 Conclusion. 144 2013
Rebecca Tsosie A Philosophy of Hope and a Landscape of Principle: the Legacy of David Getches's Federal Indian Law Scholarship 84 University of Colorado Law Review 155 (Winter, 2013) In this essay, Professor Tsosie documents two important aspects of David Getches's work in the field of federal Indian law. First, Professor Tsosie observes that David Getches was a strong proponent of guiding principles and a consistent structure in the law. Consequently, he was one of the first scholars to observe the ways in which the... 2013
Benjamin A. Kahn A Place Called Home: Native Sovereignty Through Statehood and Political Participation 53 Natural Resources Journal J. 1 (Spring 2013) This article addresses the efforts of American Indians and the Maori in New Zealand to resolve natural resource disputes and preserve sovereignty through statehood movements and other forms of political participation. This is the third installment in a series published by Stanford University and the University of California Davis on the efforts of... 2013
Spencer Sloan Accommodation and Rectification: a Dual Approach to Indigenous Peoples in International Law 51 Columbia Journal of Transnational Law 739 (2013) This Note seeks to demonstrate that the goals of multiculturalism and historical injustice rectification are closely interrelated, and that a dual analysis of these two fields can aid international law in resolving claims by indigenous peoples for both historical injustice rectification and multiculturalist accommodation. Using a multiculturalist... 2013
BJ Jones , Christopher J. Ironroad ADDRESSING SENTENCING DISPARITIES FOR TRIBAL CITIZENS IN THE DAKOTAS: A TRIBAL SOVEREIGNTY APPROACH 89 North Dakota Law Review 53 (2013) Native Americans in the Dakotas can receive criminal sentences in federal courts that are harsher than sentences meted out for similar conduct in state courts. The reason for this is the historical role the federal government has played in determining justice issues in tribal communities. Although the federal government oftentimes sought tribal... 2013
by Barbara L. Jones, Minnesota Lawyer, Minneapolis, MN Adoptive Couple 40 No.7 Preview of United States Supreme Court Cases 291 (4/15/2013) The birth parents of Baby Girl were unmarried. Mother decided to put the child up for adoption without consulting Father. Baby Girl was placed with an adoptive family in South Carolina, where she lived for about two years. Father is a Cherokee Indian, but for reasons that are disputed, the tribe and social workers initially were unaware of this.... 2013
by Barbara L. Jones, Minnesota Lawyer, Minneapolis, MN Adoptive Couple 40 Preview of United States Supreme Court Cases 291 (4/15/2013) The birth parents of Baby Girl were unmarried. Mother decided to put the child up for adoption without consulting Father. Baby Girl was placed with an adoptive family in South Carolina, where she lived for about two years. Father is a Cherokee Indian, but for reasons that are disputed, the tribe and social workers initially were unaware of this.... 2013
Marcia Zug Adoptive Couple V. Baby Girl: Two-and-a-half Ways to Destroy Indian Law 111 Michigan Law Review First Impressions 46 (April, 2013) In December 2011, Judge Malphrus of the South Carolina family court ordered Matt and Melanie Capobianco to relinquish custody of Veronica, their two-year-old, adopted daughter, to her biological father, Dusten Brown. A federal statute known as the Indian Child Welfare Act (ICWA) mandated Veronica's return. However, the court's decision to return... 2013
Miranda Strong Alaska National Interest Lands Conservation Act Compliance & Nonsubsistence Areas: How Can Alaska Thaw out Rural & Alaska Native Subsistence Rights? 30 Alaska Law Review 71 (June, 2013) The Alaska Constitution prevents the Alaska National Interest Lands Conservation Act's (ANILCA) rural subsistence priority from being enforced. The Federal Government currently manages subsistence on federal lands in Alaska and Alaska can only resume management if it becomes ANILCA compliant. The current federal management system does not... 2013
Catherine Lynn Allison Alaska Native Corporations: Reclaiming the Namesake; Effectuating the Purpose 42 Public Contract Law Journal 869 (Summer, 2013) I. Introduction. 870 II. Brief History of ANCs from Birth to Today. 871 A. Alaska Native Claims Settlement Act of 1971. 872 1. History and Background of the Act. 872 2. Alaska Native Corporations Are Established. 872 3. Alaska Native Social Improvement Fueled the Passage of the Settlement Act and Remains Important Today. 873 B. ANCs Initially Fail... 2013
Troy A. Eid Alaska Natives and American Laws, by David S. Case and David A. Voluck (3d Ed. 2012) 30 Alaska Law Review 223 (December, 2013) Alaska Natives and American Laws -- Case-Voluck, for short--has been called the Alaskan equivalent of the late Felix Cohen's Handbook of Federal Indian Law (Cohen's Handbook), the Bible of the profession. Cohen's Handbook, a massive work first published in 1941 and revised in recent years by more than three dozen Indian law scholars, itself... 2013
Gregory Gagnon American Indian Law: a Discourse on Chthonic Law 89 North Dakota Law Review 29 (2013) This discourse on Chthonic Law, a theory propounded by H. Patrick Glenn among others, is the occasion for describing advantages and disadvantages of the introduction of customary American Indian law (Chthonic law) into the courtroom. Remarks on the theory, considerations of its merits and weaknesses and illustrations from American Indian societies... 2013
Matthew L.M. Fletcher American Indian Legal Scholarship and the Courts: Heeding Frickey's Call 4 California Law Review Circuit Circuit 1 (March, 2013) American Indian legal scholarship, which rose from virtual nonexistence in the 1950s, appears to have been very influential on the courts during the 1960s and 1970s. Every decade since the 1960s has seen a dramatic increase in the number of law review articles on the subject. Courts cited to a substantial number of the American Indian law articles... 2013
M. Christian Clark Analytical Research Guide to Federal Indian Tax Law 105 Law Library Journal 505 (Fall, 2013) As tribal economic growth impacts non-Indian interests, the need for Indian tax law research inevitably increases. Federal Indian law's jurisprudential nature and constitutional ambiguity create unique challenges for tax professionals. This article is a guide to Indian tax law for both the legal academy and tax practitioners. C1-2Contents... 2013
Virginia J. Morrison Ancient Culture and Contemporary Art 5 No.3 Landslide 33 (January/February, 2013) Australian Aboriginal art is one of the longest continuing art traditions in the world. From ancient rock art to the contemporary Indigenous art movement that has been recognized around the world, it speaks of a connection to land and culture. As Australia has moved gradually toward reconciliation between Indigenous and non-Indigenous Australians,... 2013
Bryan Neihart Awas Tingni V. Nicaragua Reconsidered: Grounding Indigenous Peoples' Land Rights in Religious Freedom 42 Denver Journal of International Law and Policy 77 (Fall 2013) The Inter-American Court on Human Rights (IACHR) decided the Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua (Awas Tingni) over twelve years ago. Since then, the decision has been the subject of many notes and articles focusing primarily on the decision's impact on the collective land and property rights of indigenous peoples.... 2013
Gabrielle Lynch, University of Warwick Being Maasai, Becoming Indigenous: Postcolonial Politics in a Neoliberal World Dorothy Hodgson (Bloomington: Indiana University Press, 2011) 36 PoLAR: Political and Legal Anthropology Review 367 (November, 2013) In this excellent book, Hodgson examines how and why, in the late twentieth and early twenty first centuries, Maasai activists in Tanzania positioned and then repositioned themselves as indigenous and then as pastoralists in their struggles for representation, recognition, resources, and rights. More specifically, Hodgson analyzes how these... 2013
Niels Nagelhus Schia , Norwegian Institute of International Affairs (NUPI) Being Part of the Parade - "Going Native" in the United Nations Security Council 36 PoLAR: Political and Legal Anthropology Review 138 (May, 2013) How do small states behave once they have a seat at the table? In this article, I describe how one small state--Norway--operated when it was a member of the United Nations Security Council (UNSC) in 2001-02. From my anthropological fieldwork in this period, I present a number of arguments. The first one is that, substantively, Norwegian diplomats... 2013
Claire Chiamulera Best Practices for Native American and All Families 32 No.8 Child Law Practice 124 (August, 2013) Every child benefits from connections to their communities, culture, and heritage. These connections give them a sense of place and belonging. Children who enter the child welfare system risk losing these connections. American Indian children historically have faced a greater risk of lost connections, a trend that is changing but requires family... 2013
Larry Catá Backer , Bret Stancil Beyond Colonization--globalization and the Establishment of Programs of U.s. Legal Education Abroad by Indigenous Institutions 5 Drexel Law Review 317 (Spring 2013) This Article will look at globalization in the context of higher education and, in particular, higher legal education. The objective will be to think about the ways in which non-U.S.-based law schools are now offering American-style legal education to supply the U.S. legal market or produce U.S.-trained lawyers in the home-state market or for other... 2013
Katherine Florey BEYOND UNIQUENESS: REIMAGINING TRIBAL COURTS' JURISDICTION 101 California Law Review 1499 (December, 2013) If there is one point about tribal status that the Supreme Court has stressed for decades, if not centuries, it is the notion that tribes as political entities are utterly one of a kind. This is to some extent reasonable; tribes, unlike other governments, have suffered the painful history of colonial conquest, making some distinctive treatment... 2013
Josephine M. Balzac Cafta-dr's Citizen Submission Process: Is it Protecting the Indigenous Peoples Rights and Promoting the Three Pillars of Sustainable Development? 11 Loyola University Chicago International Law Review 11 (Fall/Winter 2013) I. Introduction. 12 II. The Human Rights of Indigenous People. 16 A. Inter-American Decisions on Traditional Indegienous Lands. 17 B. Indigenous Rights Enumerated in the Declaration. 18 III. Public Engagement, Sustainable Development, and Procedural Justice in Free Trade Agreements Key. 22 A. The Concept and Achievement of Sustainable Development.... 2013
R. Matthew Short Can the Tiger Sit down with the Dragon? An Assessment of Chinese and Indian Antitrust Laws 41 Georgia Journal of International and Comparative Law 831 (Spring, 2013) I. Introduction. 832 II. Background. 833 A. China's Legislative History Regarding Antitrust Law. 834 B. India's Legislative History Regarding Antitrust Law. 835 C. Economic Goals of Antitrust Law Generally. 837 D. China's Economic Goals Regarding Antitrust Law. 837 E. India's Economic Goals Regarding Antitrust Law. 839 III. Merger Review in China... 2013
Lawana L. Bryant, Katherine E. Lewis, Maia Puryear, Alyssa Reiner Caught in the Middle 5 No.4 Landslide 26 (March/April, 2013) For centuries, museums and cultural institutions (collec tively institutions) across North America have purchased, collected, catalogued, displayed, and exhibited the artwork, sacred objects, and, particularly, human remains of indigenous peoples from regions across the continent with minimal regard to the cultural importance of those items and... 2013
  Chaco Nation of the Chaco Indian Reservation, Depaulia, Plaintiff-appellant, V. Edward Williamson, Defendant-appellee 23 DePaul Journal of Art, Technology & Intellectual Property Law 525 (Spring, 2013) Clark, Circuit Judge. The Chaco Nation of the Chaco Indian Reservation (Chaco Nation), located in DePaulia, appeals the judgment of the United States District Court for the Northern District of DePaulia. The district court held, first, that the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. §§ 3001 et seq., does not vest... 2013
  Chapter 19 • Native American Resources 2013 ABA Environment, Energy, and Resources Law: The Year in Review 192 (2013) On June 25, 2013, the Supreme Court ruled in a 5-4 decision in Adoptive Couple v. Baby Girl --popularly known as the Baby Veronica case--that the Indian Child Welfare Act (ICWA) does not apply to a biological parent who has never had custody of a child, despite the fact that ICWA explicitly defines parent to include any biological parent,... 2013
Daniel C.K. Chow China's Indigenous Innovation Policies and the World Trade Organization 34 Northwestern Journal of International Law and Business 81 (Fall 2013) China's Indigenous Innovation Policies are a web of policies, regulations, and strategies that are designed to develop an indigenous capacity to create innovation and advanced technology as part of China's larger strategy to ascend to the top ranks of the world's industrialized nations. As part of these policies, China has implemented... 2013
Rebecca Tsosie Climate Change and Indigenous Peoples: Comparative Models of Sovereignty 26 Tulane Environmental Law Journal 239 (Summer 2013) I. Understanding Indigenous Rights: The Domains of Political and Cultural Sovereignty. 241 II. The Framework for Climate Justice Within Domestic U.S. Law. 246 III. International Law and Climate Justice. 250 IV. Indigenous Peoples and Environmental Self-Determination. 253 V. Conclusion. 256 2013
Judith V. Royster Climate Change and Tribal Water Rights: Removing Barriers to Adaptation Strategies 26 Tulane Environmental Law Journal 197 (Summer 2013) I. Introduction. 197 II. State General Stream Adjudications and Antiadaptive Decisions. 201 A. Restrictions as to Measure of Quantification. 203 B. Restrictions as to Water Sources. 207 C. Restrictions as to Use. 210 D. Bringing Federal Law back into Adjudications. 212 III. Restrictions on Tribal Water Codes. 214 IV. Restrictions on Water... 2013
Sumudu Atapattu Climate Change, Indigenous Peoples and the Arctic: the Changing Horizon of International Law 22 Michigan State International Law Review 377 (2013) Introduction. 377 I. The Impact of Climate Change. 379 II. Indigenous Peoples and the Arctic. 382 A. The Inuit Petition. 384 III. Indigenous Communities and the Relevance of Free, Prior & Informed Consent. 387 A. FPIC-What Does It Mean?. 389 B. Case Law. 393 IV. Using the Global Commons Framework. 398 A. Governance of the Arctic. 398 B. Global... 2013
Tony Penikett , Adam Goldenberg Closing the Citizenship Gap in Canada's North: Indigenous Rights, Arctic Sovereignty, and Devolution in Nunavut 22 Michigan State International Law Review 23 (2013) When Canada signed the Nunavut Land Claims Agreement in 1993, it committed to create a new territory, Nunavut, as an Inuit homeland in the Canadian Eastern Arctic. Parliament fulfilled this promise with the passage of the Nunavut Act, and the new territory came into existence on April 1, 1999. Still, the Government of Nunavut remains a creature of... 2013
Randall S. Abate , Elizabeth Ann Kronk Commonality among Unique Indigenous Communities: an Introduction to Climate Change and its Impacts on Indigenous Peoples 26 Tulane Environmental Law Journal 179 (Summer 2013) I. Introduction. 179 II. Commonality of Experience. 181 III. Legal Responses at the Domestic, Regional, and International Levels. 191 IV. Conclusion. 195 2013
  Conference Transcript: Heeding Frickey's Call: Doing Justice in Indian Country 37 American Indian Law Review 347 (2012-2013) HEEDING PHIL FRICKEY'S CALL: THE ISSUES IN INDIAN COUNTRY. 348 Matthew L.M. Fletcher, Professor of Law and Director of the Indigenous Law & Policy Center, Michigan State University College of Law. 348 Joseph Heath, Attorney at Law, Onondaga Nation General Counsel. 351 Pat Sekaquaptewa, Executive Director, Nakwatsvewat Institute. 358 ENVIRONMENTAL... 2013
Mark R. Carter, JD, PhD Congress' Encroachment on the President's Power in Indian Law and its Effect on Executive-order Reservations 11 Seattle Journal for Social Justice 1193 (Spring, 2013) I. The Executive-Order Reservation Constitutional Problem II. Separation of Powers Doctrine A. Mainstream Separation of Powers Between the President and Congress 1. The President's Power a) Foreien Power (1) Treaties Ratified by the Senate (2) Executive Agreements Without Senate Ratification (3) Recognizing Governments (4) Abrogating Treaties b)... 2013
Rachel Friedlander CONSIDERING THE EFFECTS OF UTILIZING UNCOUNSELED TRIBAL CONVICTIONS IN FEDERAL RECIDIVISM PROSECUTIONS 16 Journal of Gender, Race and Justice 955 (Summer 2013) There are 562 federally recognized Indian tribes in the United States, and approximately 1.5 million American Indians and Alaska Natives live in Indian country. Historically, the federal government has granted sovereignty to tribal governments, allowing them legal control over tribal lands. However, adherence to this commitment to independent... 2013
Samantha A. Moppett Control-alt-incomplete? 12 Chicago-Kent Journal of Intellectual Property 77 (Spring, 2013) Law students matriculating today were born digital. As digital natives, they have never known a world without digital technology, andtherefore, they think and process information differently than previous generations. Although law school student bodies have changed, law school assessment methods have remained static, with students nearly... 2013
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