Peter Scott Vicaire Two Roads Diverged in a Wood 50 No.3 Judges' Journal 18 (Summer, 2011) The purpose of this article is to compare the differing treatments of indigenous peoples by way of the Canadian and American constitutions and judicial and bureaucratic interpretations of them. Ultimately, the United States has a better record in recognizing and, to a certain degree, even nurturing the rights of Indian tribes. Canadian... 2011
by Jayne Zanglein and Kristi House, Western Carolina University, Cullowhee, NC United States 38 No.7 Preview of United States Supreme Court Cases 296 (4/18/2011) As a fiduciary, the secretary of the interior and his staff holds, in trust, certain funds of the Jicarilla Apache Nation, which are derived from natural resources mined from tribal land. The tribe sued the United States to compel an accounting of the fund. The issue is whether the tribe can invoke the fiduciary exception to the attorney-client... 2011
  United States Endorses Un Indigenous Declaration 105 American Journal of International Law 354 (April, 2011) In December 2010, President Barack Obama announced to a group of tribal leaders attending the White House Tribal Nations Conference that the United States is lending its support to the UN Declaration on the Rights of Indigenous Peoples. The President's remarks noted the document's significance but also its aspirational nature. The aspirations it... 2011
Daniel I.S.J. Rey-Bear, Timothy H. McLaughlin United States V. Jicarilla Apache Nation: the Executive Branch's Latest Effort to Repudiate Federal Trust Duties to Indians 58-APR Federal Lawyer 48 (March/April, 2011) Every trustee has a legal obligation to advance the interests of the beneficiaries of the trust without reservation and with the highest degree of diligence and skill. Under present conditions, it is often difficult for the Department of the Interior and the Department of Justice to fulfill this obligation. -- President Richard Nixon, Special... 2011
Casey Zivin Using the Federal Communication Commission's Tower Construction Notification System as a Model for Siting Nuclear Waste on Native American Land 2 Washington and Lee Journal of Energy, Climate, and the Environment 51 (Fall, 2010-Spring, 2011) Since the advent of nuclear power in the United States in the mid-20th century, the federal government has struggled to find a suitable location to store the hazardous waste associated with nuclear power generation. In 1991, in an attempt to solve the problem of storing nuclear waste, the federal government created grant programs which offered... 2011
Douglas K. Miller Visibility Issues in Rural Arizona and Indian Country 43 Arizona State Law Journal 861 (Fall 2011) These days, we often hear about the energy-water nexus. What does that mean? Typically, those who use the phrase are referring to the amount of water it takes to generate the energy we need. Less often, I suspect, they mean the amount of energy needed to deliver water. The latter is the subject of this article; and specifically, the relationship... 2011
Audrey Mense We Could Tell You, but Then We'd Have to Kill You: How Indigenous Cultural Secrecy Impedes the Protection of Natural Cultural Heritage in the United States 11 Chicago-Kent Journal of International and Comparative Law L. 1 (2011) In the past century, Western society has undergone a major shift in regards to its treatment of native peoples and cultures. Unlike our predecessors, who often endeavored to dominate or eradicate indigenous peoples in the Americas and elsewhere around the globe, we now look upon these same native groups with wonder and reverence. This trend has... 2011
Kristin R. Michael What's in a Label? Fifra Regulations and the Preemption of State Tort Claims of Label Misrepresentation 18 Missouri Environmental Law & Policy Review 314 (Spring, 2011) Products available for purchase in the United States have labels which people read and rely upon for their accuracy. This is particularly true for products that are potentially dangerous like pesticides. However, contrary to intuition, it is not always clear what constitutes a label. Some courts have even expanded the definition of a label to... 2011
John Lentz When Canons Go to War in Indian Country, Guess Who Wins? Barrett V. United States: Tax Canons and Canons of Construction in the Federal Taxation of American Indians 35 American Indian Law Review 211 (2010-2011) I. Introduction. 211 II. Background. 213 A. Crash Course in Federal Indian Tax Law. 213 B. Some Recent and Relevant Precedent. 218 C. The Potawatomi Nation and Handling of Their Judgment Funds. 220 D. Barrett v. United States. 223 1. District Court. 223 2. Tenth Circuit Court of Appeals. 228 3. Petition for Writ of Certiorari. 231 III. Analysis.... 2011
Valentina S. Vadi When Cultures Collide: Foreign Direct Investment, Natural Resources, and Indigenous Heritage in International Investment Law 42 Columbia Human Rights Law Review 797 (Spring, 2011) I. Introduction. 798 II. The Protection of Indigenous Cultural Heritage in International Law. 802 A. The Notion of Indigeneity. 803 B. World Cultural Heritage or Indigenous Cultural Heritage?. 805 C. The International Protection of Indigenous Cultural Heritage. 808 D. Cultural Entitlements as a Fundamental Part of Indigenous Peoples' Rights. 818... 2011
Corina Rocha Pandeli When the Chips Are Down: Do Indian Tribes with Insolvent Gaming Operations Have the Ability to File for Bankruptcy under the Federal Bankruptcy Code? 2 UNLV Gaming Law Journal 255 (Fall, 2011) Indian gaming has become increasingly popular in the United States, with casino and resort facilities on federally recognized Indian land rivaling the likes of Las Vegas and Atlantic City casinos. Since the passage of the Indian Gaming Regulatory Act of 1988 (IGRA), gaming activities on Indian reservations across the country have skyrocketed,... 2011
Áquila Mazzinghy Alvarenga Who Cares about the Rights of Indigenous Children? Infanticide in Brazilian Indian Tribes 22 Hastings Women's Law Journal 17 (Winter 2011) International law entitles indigenous peoples to a full range of human rights. Nevertheless, in many parts of the world, [they] suffer from a history of discrimination and exclusion that has left them on the margins of the larger societies in which they exist. For this reason, they face great difficulties in maintaining and developing their own... 2011
Bethany R. Berger Williams V. Lee and the Debate over Indian Equality 109 Michigan Law Review 1463 (June, 2011) Williams v. Lee (1959) created a bridge between century-old affirmations of the immunity of Indian territories from state jurisdiction and the tribal self-determination policy of the twentieth century. It has been called the first case in the modern era of federal Indian law. Although no one has written a history of the case, it is generally... 2011
Robert F. Castro Xenomorph!! 46 Harvard Civil Rights-Civil Liberties Law Review Rev. 1 (2011) The national debate over illegal immigration has been dramatically altered since 9/11. In his book The Latino Threat, Leo R. Chavez argues that Latina/o immigrants--including those U.S. populations that physically resemble them-- have been socially constructed as grave risks to the United States. Arizona Senate Bill 1070 (hereinafter S.B. 1070)... 2011
Vickie Enis Yours, Mine, Ours? Renovating the Antiquated Apartheid in the Law of Property Division in Native American Divorce 35 American Indian Law Review 661 (2010-2011) In an ideal world, one marries for love. In reality, however, marriage is often inspired by other motivations. The attractive young woman marrying the wealthy, established, older man is an image with which we are all too familiar. But an image not typically evoked by the mention of the word gold-digger is a non-Indian marrying an Indian to gain... 2011
Matthew L.M. Fletcher 2010 Dillon Lecture: Rebooting Indian Law in the Supreme Court 55 South Dakota Law Review 510 (2010) Aanii. It is an honor to deliver the 2010 lecture in honor of South Dakota Supreme Court Associate Justice Charles Hall Dillon. Justice Dillon, I was pleased to discover, delivered an important dissent in an American Indian law case in 1924, Dakota Life Insurance Co. v. Morgan. The majority had reversed a trial court decision affirming a life... 2010
Lawrence R. Baca 35 Years of the Fba Indian Law Conference 57-APR Federal Lawyer Law. 3 (March/April, 2010) In April 1976, the Federal Bar Association held its first conference on Indian law in Phoenix, Ariz. This year the Indian Law Section is celebrating the 35th anniversary of the conference. The program planners have compiled a fairly complete list of the conference chairs and topics for all the past programs, which is found in this issue, but it is... 2010
YANG, Chih-Chieh A Comparative Study of the Models Employed to Protect Indigenous Traditional Cultural Expressions 11 Asian-Pacific Law and Policy Journal 49 (2010) I. Introduction. 50 II. Models for Protecting Traditional Cultural Expressions. 51 A. The Public Domain Model. 52 B. The Customary Law Model. 53 1. Customary Protocols Regarding Traditional Design, Music and Dance in North America. 53 2. Customary Law Regarding Traditional Symbols and Art in Australia. 54 3. 54 C. The Authentication Model.... 2010
Angelique EagleWoman , Wambdi A. WasteWin A Constitutional Crisis When the U.s. Supreme Court Acts in a Legislative Manner? An Essay Offering a Perspective on Judicial Activism in Federal Indian Law and Federal Civil Procedure Pleading Standards 114 Penn State Law Review Penn Statim 41 (7/9/2010) The United States Supreme Court is one of the three branches of federal government in the U.S. governmental system of checks and balances. The primary purpose of the Court is to resolve live controversies as final arbiter on the interpretation of the U.S. Constitution and the federal legislation implementing that foundational document. For scholars... 2010
Brian L. Lewis A Day Late and a Dollar Short: Section 2719 of the Indian Gaming Regulatory Act, the Interpretation of its Exceptions and the Part 292 Regulations 12 Thomas M. Cooley Journal of Practical and Clinical Law 147 (Hilary Term 2010) Congress enacted the Indian Gaming Regulatory Act (IGRA) in 1988. The IGRA does not affect the Secretary of the Interior's (Secretary) authority to take land into trust for tribes. Section 2719 of the IGRA is a land use limitation that prohibits tribes from conducting gaming on lands they didn't possess in 1988. However, § 2719 of the IGRA... 2010
Jennifer Lynn Zweig A Globally Sustainable Right to Land: Utilizing Real Property to Protect the Traditional Knowledge of Indigenous Peoples and Local Communities 38 Georgia Journal of International and Comparative Law 769 (2010) Treat the earth well. It was not given to you by your parents, it was loaned to you by your children. -Indian Proverb Humans are interconnected with each other and the environment. Like a chain, when one link is lost the individual links can no longer function as a collective. In this way, the world may be considered the collective, unable to... 2010
David Urteago A Mighty Pulverizing Engine? The American Indian Probate Reform Act and the Struggle for Group Rights 2 Estate Planning & Community Property Law Journal 463 (Spring, 2010) [T]he time has arrived when we should definitely make up our minds to recognize the Indian as an individual and not as a member of a tribe. The General Allotment Act is a mighty pulverizing engine to break up the tribal mass [acting] directly upon the family and the individual . . . . -Theodore Roosevelt, U.S. President, First Annual Message (Dec.... 2010
Uilisone Falemanu Tua A Native's Call for Justice: the Call for the Establishment of a Federal District Court in American Samoa 11 Asian-Pacific Law and Policy Journal 246 (2010) I. Introduction. 247 II. Congress Created Federal District Courts Pursuant to Article III of the U.S. Constitution. 252 A. Congress Has Plenary Power over the Territories under Article IV of the U.S. Constitution and Can Create Territorial Courts under Such Authority. 253 B. Territorial Federal District Courts Exist in Every Territory Except... 2010
Kyle Persaud A Permit to Practice Religion for Some but Not for Others: How the Federal Government Violates Religious Freedom When it Grants Eagle Feathers Only to Indian Tribe Members 36 Ohio Northern University Law Review 115 (2010) On June 27, 2008, the Ninth Circuit Court of Appeals issued a ruling on a controversy that has divided federal appellate courts for the past seven years: whether individuals, who are not members of Indian tribes, may possess eagle feathers for use in religious observances. Mario Vasquez-Ramos and Luis Rodriguez-Martinez were leaders in their Native... 2010
Cassandra Barnum A Single Penny, an Inch of Land, or an Ounce of Sovereignty: the Problem of Tribal Sovereignty and Water Quality Regulation under the Maine Indian Claims Settlement Act 37 Ecology Law Quarterly 1159 (2010) This Note has three goals: to describe the Environmental Protection Agency's 2003 delegation of National Pollutant Discharge Elimination System permitting authority to the State of Maine under the Clean Water Act, to critique the Agency's decision based on principles of federal Indian law, and to propose solutions to the resultant problems faced by... 2010
Taylor Reinhard Advancing Tribal Law Through "Treatment as a State" under the Obama Administration: American Indians May Also Find Help from Their Legal Relative, Louisiana--no Blood Quantum Necessary 23 Tulane Environmental Law Journal 537 (Summer 2010) I. Introduction. 538 II. Background. 540 A. Tribal Sovereignty and the Federal Government's Fiduciary Duty as Trustee. 540 B. Treatment in the Same Manner as a State Really Means Treating Tribes as States. 541 C. Courts Carefully Lengthen the Arm of Tribal Jurisdiction under the TAS Doctrine. 542 III. American Indian Legal Systems: New Growth on... 2010
Kevin K. Washburn Agency Conflict and Culture: Federal Implementation of the Indian Gaming Regulatory Act by the National Indian Gaming Commission, the Bureau of Indian Affairs, and the Department of Justice 42 Arizona State Law Journal 303 (Spring 2010) The so-called Founding Fathers, the men who came together to draft the United States Constitution, believed in divided government and the dispersion of governmental power among competing institutions. They believed that a system of separation of powers and checks and balances could prevent the aggregation of power in a single decision-maker who... 2010
Ezra Rosser Ahistorical Indians and Reservation Resources 40 Environmental Law 437 (Spring 2010) This Article is an in-depth exploration of the impacts of an Indian tribe deciding to pursue environmentally destructive forms of economic development. The Article makes two principal contributions. First, it establishes the Navajo Nation's decision-making role. Prior mineral resource forms of development may have been formally approved by the... 2010
Amber Crossman Cheng All in the Same Boat? Indigenous Property Rights in Underwater Cultural Heritage 32 Houston Journal of International Law 695 (Summer 2010) I. INTRODUCTION. 696 II. ORIGINS OF THE BLACK SWAN TREASURE. 698 A. History of the Black Swan. 698 B. Claims to the Black Swan Treasure. 699 C. Indigenous Peoples' Relationship to Mining in Peru. 702 III. EXISTING TREATMENT OF UNDERWATER CULTURAL HERITAGE IN INTERNATIONAL LAW. 707 A. Maintaining the Status Quo: The U.N. Convention on the Law of the... 2010
Elizabeth Ann Kronk Alternative Energy Development in Indian Country: Lighting the Way for the Seventh Generation 46 Idaho Law Review 449 (2010) Indigenous Peoples are like the miner's canary, when their cultures and languages disappear this reflects the profound sickness in the ecology. C1-2TABLE OF CONTENTS I. THE STATUS QUO. 450 II. INCREASING INTEREST IN ALTERNATIVE ENERGY DEVELOPMENT IN INDIAN COUNTRY. 455 A. Native Communities Are Uniquely Impacted by Climate Change, Creating... 2010
Theodore Macdonald Amazonian Indigenous Views on the State: a Place for Corporate Social Responsibility? 33 Suffolk Transnational Law Review 439 (Symposium 2010) Shortly after dinner on November 16, 1532, Father Vicente de Valverde, chaplain to Francisco de Pizzaro, explained to their Inca host Atahualpa that he must pay tribute in gold and silver to God, through King Charles IV of Spain. The Inca responded to this circuitous logic with a series of well-reasoned questions. Instead of answering, the Spanish... 2010
Robert J. Miller American Indian and Tribal Intellectual Property Rights 13 Tulane Journal of Technology and Intellectual Property 179 (Fall 2010) I. Introduction. 179 II. Indian Arts and Crafts Act. 180 III. Protection of Tribal and Individual Names. 181 IV. U.S. Patent & Trademark Office. 182 V. Future Issues. 183 2010
Margaret P. Moss American Indian Health Disparities: by the Sufferance of Congress? 32 Hamline Journal of Public Law and Policy 59 (Fall 2010) The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. A seminal question for consideration in American Indian health is: To what extent has the unique political history of American Indians played a part in their health status as... 2010
Helaman S. Hancock America's War on Tribal Economies: Federal Attacks on Native Contracting in the Sba 8(a) Business Development Program 49 Washburn Law Journal 717 (Spring 2010) History has taught us that once something is identified as being valuable to Native Americans, the federal government tries to take it away. Congress and the executive branch have enacted laws, adopted policies, and declared war on America's Native Peoples to accomplish such deprivations. The United States broke numerous treaties and diplomatic... 2010
Ethan Davis An Administrative Trail of Tears: Indian Removal 50 American Journal of Legal History 49 (January, 2008-2010) In the early nineteenth century, the federal government uprooted the so-called five Civilized Tribes of the South and sent them westward to modem day Oklahoma. This article rediscovers the long-forgotten administrative system that guided the removal of one of those tribes: the Choctaws. Because judicial review was non-existent, control of the... 2010
David Fautsch An Analysis of Article 28 of the United Nations Declaration on the Rights of Indigenous Peoples, and Proposals for Reform 31 Michigan Journal of International Law 449 (Winter 2010) Introduction. 450 I. Article 28 in the Courts: A Theoretical Analysis. 454 A. Repeat Players and One-Shotters. 454 B. Article 28 Is Susceptible to Abuse. 457 II. Problems with Implementation and Enforcement of Judgments: Examples from South Africa and Nicaragua. 459 A. South Africa. 460 1. The Richtersveld Case. 460 2. Land Rights in the Wake of... 2010
Richael Faithful An Idea of American Indian Land Justice: Examining Native Land Liberation in the New Progressive Era 67 National Lawyers Guild Review 193 (Winter, 2010) In the Tewa tribal tradition there is a story that explains how the Tewa People found themselves in San Juan, California. It begins with a Great Drought. The fish people were responsible for offering prayers to the Great Spirit, so they assembled to fast, pray, and sacrifice in a secluded kiva until the rain came as was custom. A woman named... 2010
Ruslan Garipov An Introduction to Native America: the Experience of a Russian Lawyer 86 North Dakota Law Review 197 (2010) I am convinced that those societies (as the Indians) which live without government enjoy in their general mass an infinitely greater degree of happiness than those who live under the European governments. -- Thomas Jefferson This article reports on the six months I spent in the United States with the Fulbright Program. I was involved with many... 2010
Thomas W. Christie An Introduction to the Federal Tort Claims Act in Indian Self-determination Act Contracting 71 Montana Law Review 115 (Winter 2010) Barack Obama began his presidency by reminding Americans that we are in a new era of responsibility. For Indian Country, the word responsibility is often understood in terms of the Federal Trust Responsibility--that is, the obligation of the trustee, the United States, to its beneficiary, the tribes. The concept of a trust responsibility has... 2010
Andrew G. Hill Another Blow to Tribal Sovereignty: a Look at Cross-jurisdictional Law-enforcement Agreements Between Indian Tribes and Local Communities 34 American Indian Law Review 291 (2009-2010) Perhaps the most basic principle of all Indian law, supported by a host of decisions, is that those powers lawfully vested in an Indian nation are not, in general, delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which has never been extinguished. The keystone of Indian tribes has long been... 2010
J. Gordon Hylton Before the Redskins Were the Redskins: the Use of Native American Team Names in the Formative Era of American Sports, 1857-1933 86 North Dakota Law Review 879 (2010) I. INTRODUCTION. 879 II. CURRENT SENTIMENT. 881 III. A BRIEF HISTORY OF NATIVE AMERICAN TEAM NAMES. 886 IV. THE FIRST USAGES OF NATIVE AMERICAN TEAM NAMES IN AMERICAN SPORT. 890 A. Native American Team Names in Early Baseball. 891 B. Native American Teams Names in Early Professional Baseball. 894 C. Native American Team Names in College Sport. 900... 2010
Scott Grinsell Caste and the Problem of Social Reform in Indian Equality Law 35 Yale Journal of International Law 199 (Winter 2010) I. Introduction. 199 II. The History of the Caste System and Reservation Policy. 203 A. The History and Structure of the Caste System. 203 B. Caste and the Indian Constitution. 205 III. Caste and Constitutional Aspiration. 208 A. N.M. Thomas and the Constitutional Concept of Equality. 209 B. Indra Sawhney and the Return to Localism. 212 IV. Caste... 2010
Bethany C. Sullivan Changing Winds: Reconfiguring the Legal Framework for Renewable-energy Development in Indian Country 52 Arizona Law Review 823 (Fall 2010) Renewable energy is undoubtedly one of today's hot topics, often discussed hand-in-hand with climate change, environmental policy, and international affairs. Yet one aspect of renewable energy that frequently goes unnoticed is its role in the American Indian community. Tribal officials are increasingly focused on renewable-energy projects as a... 2010
Rosemary Simota Thompson Chicago's Native Son 24-SEP CBA Record 30 (September, 2010) In terms of Supreme Court tenure, John Paul Stevens is second only to William O. Douglas in modern legal history. In 1975, when Justice Stevens was sworn in, men's bow ties were not high fashion. Back then, there was no such thing as the Internet; the Beatles were all still alive; and TV meant less than a dozen channels. Now, the only constant is... 2010
Peter d'Errico, University of Massachusetts Amherst Christian W. Mcmillen. Making Indian Law: the Hualapai Land Case and the Birth of Ethnohistory. New Haven, Ct: Yale University Press, 2007. 304 Pp. $40.00 (Cloth); $25.00 (Paper). 50 American Journal of Legal History 224 (April, 2008-2010) This is a good book, but very dangerous. McMillen's thorough research into the history of a significant case in federal Indian law probes deeply the activity preceding and accompanying the litigation of Hualapai land rights in the first half of the 20th century. He pays close attention to bureaucratic processes in the Departments of Justice and... 2010
Marren Sanders Clean Water in Indian Country: the Risks (And Rewards) of Being Treated in the Same Manner as a State 36 William Mitchell Law Review 533 (2010) I. Introduction. 534 II. The Clean Water Act. 535 A. Background. 535 B. Treatment as a State Provision. 537 C. Devolution, Delegation, or Something Else Entirely?. 540 D. The Bane of Jurisdiction. 542 E. The Wisconsin Debacle. 545 III. More Risk Than Reward?. 547 A. Here Today, Gone Tomorrow?. 549 B. Federal Core Standards. 550 C. The Oklahoma... 2010
C. Scott Pryor Clear Rules Still Produce Fuzzy Results: Impossibility in Indian Contract Law 27 Arizona Journal of International & Comparative Law L. 1 (Spring, 2010) Robert Scott and others have forcefully argued that the justification for commercial statute-drafting is efficiency. Because commercial parties can draft their own contracts, legislatures should draft default rules, he argues, only when it will save commercial parties time and money. This can be called the efficiency goal. Greater efficiency is... 2010
Melanie Riccobene Jarboe Collective Rights to Indigenous Land in Carcieri V. Salazar 30 Boston College Third World Law Journal 395 (Spring, 2010) Since settlers set foot in the Americas, tension has existed between American Indian tribes and European settlers over tribal rights to land. When the Narragansett Tribe of Rhode Island proposed to build low-income housing on a thirty-one acre parcel of land, it became involved in years of litigation with the State of Rhode Island, its... 2010
Adam Walczak Coming to the Table: Why Corporations Should Advocate for Legal Norms for the Protection of Indigenous Rights 42 George Washington International Law Review 623 (2010) The Baka and Bakola, widely considered to be the original inhabitants of the rainforest of Cameroon, have no legal right to their traditional lands because the government of Cameroon views their subsistence hunting and gathering to be backward in comparison to timber extraction. These indigenous peoples may be dispossessed of their traditional... 2010
Tim Pleasant, Deena DeGenova, Concord Law School Conference of Western Attorneys General. American Indian Law Deskbook. Boulder: University Press of Colorado, 2008. 789 Pp. $85.00 (Cloth) 50 American Journal of Legal History 108 (January, 2008-2010) The American Indian Law Deskbook is the fourth edition of a collaborative effort of the Conference of Western Attorneys General (CWAG). But don't let the word deskbook in the title fool you. As acknowledged by CWAG in the foreword, this project was intended to be a comprehensive and objective treatise covering the whole spectrum of Indian... 2010
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