AuthorTitleCitationSummaryYear
Wenona T. Singel Indian Tribes and Human Rights Accountability 49 San Diego Law Review 567 (August-September 2012) I. Introduction. 568 II. Tribes as Governments with Human Rights Impacts. 570 A. A Primer on Tribal Sovereignty. 571 B. Introduction to Tribal Sovereign Immunity. 573 C. Tribal Powers of Self-Government. 575 D. The Parameters of Tribal Jurisdiction. 576 E. Tribal Self-Governance in Practice. 579 1. Law Enforcement. 580 2. Tribal Courts. 581 3.... 2012
Wenona T. Singel INDIAN TRIBES AND HUMAN RIGHTS ACCOUNTABILITY 49 San Diego Law Review 567 (August-September 2012) I. Introduction. 568 II. Tribes as Governments with Human Rights Impacts. 570 A. A Primer on Tribal Sovereignty. 571 B. Introduction to Tribal Sovereign Immunity. 573 C. Tribal Powers of Self-Government. 575 D. The Parameters of Tribal Jurisdiction. 576 E. Tribal Self-Governance in Practice. 579 1. Law Enforcement. 580 2. Tribal Courts. 581 3.... 2012
Matthew L.M. Fletcher , Peter S. Vicaire Indian Wars: Old and New 15 Journal of Gender, Race and Justice 201 (Spring 2012) In March 2011, the United States submitted a brief in United States v. al Bahlul, a military commission case reviewing the conviction of a war-on-terror suspect, comparing the tactics Indians used in the First Seminole War to al Qaeda, an argument the Court partially accepted in a companion case, United States v. Hamdan. As government lawyers had... 2012
Angela R. Riley Indians and Guns 100 Georgetown Law Journal 1675 (June, 2012) C1-3Table of Contents L1-2Introduction . L31676 I. Indians and Guns from Contact to Citizenship. 1681 a. indians and guns in the colonial period. 1685 b. indian nations, the constitution, and ratification of the second amendment. 1693 c. the indian as (reservation) citizen. 1701 II. The Indian Civil Rights Act and the Disappearing Second Amendment.... 2012
Fred L. Borch III, Regimental Historian & Archivist Indians as War Criminals? The Trial of Modoc Warriors by Military Commission 2012-MAR Army Lawyer Law. 7 (March, 2012) Early in the morning of Good Friday, 11 April 1873, Brigadier General (BG) Edward R.S. Richard Canby stepped out of his tent, which was pitched near Tule Lake on the California-Oregon border. Canby, a 56-year-old West Point graduate and veteran of the Civil War, was the commander of the Department of the Columbia, which consisted of the State of... 2012
Honor Keeler Indigenous International Repatriation 44 Arizona State Law Journal 703 (Summer 2012) I. Introduction. 705 II. History. 710 A. Introduction. 710 B. Introduction of European International Law to Native America. 713 1. 15 Century: Europe Adopts Historic Practice of Non-Consent and Grave Robbing. 713 2. 15-16 Centuries: Columbus Dictates the Future of European Relations with Native American Nations. 717 3. 16-17 Centuries: European... 2012
Rebecca Tsosie Indigenous Peoples and Epistemic Injustice: Science, Ethics, and Human Rights 87 Washington Law Review 1133 (December, 2012) This Article explores the use of science as a tool of public policy and examines how science policy impacts indigenous peoples in the areas of environmental protection, public health, and repatriation. Professor Tsosie draws on Miranda Fricker's account of epistemic injustice to show how indigenous peoples have been harmed by the... 2012
Lorne Sossin Indigenous Self-government and the Future of Administrative Law 45 U.B.C. Law Review 595 (June, 2012) A great deal of advocacy, adjudication, and analysis has focused on the Aboriginal right to self-government under the Canadian Constitution. Very little attention, by contrast, has been devoted to what happens the day after self-government is achieved, when the focus shifts to implementing rather than achieving self-government. For example, will... 2012
Sarah Krakoff INEXTRICABLY POLITICAL: RACE, MEMBERSHIP, AND TRIBAL SOVEREIGNTY 87 Washington Law Review 1041 (December, 2012) Abstract: Courts address equal protection questions about the distinct legal treatment of American Indian tribes in the following dichotomous way: are classifications concerning American Indians racial or political? If the classification is political (i.e., based on federally recognized tribal status or membership in a federally recognized tribe)... 2012
Justin Seigler Injustice in Indian Country: the Need for a Serious Response to Native American Elder Abuse 19 Elder Law Journal 415 (2012) Traditionally, elders have held an important position filled with prestige and authority in Native American culture. However, elder abuse is still a problem in this community. To combat this issue, a number of different tactics have been employed. The success of various programs, however, has been highly contingent upon their cultural sensitivity.... 2012
James Riding In Introduction: Human Rights and the American Indian Repatriation Movement: a Manifesto 44 Arizona State Law Journal 613 (Summer 2012) Old Ones, I want to speak to you. I am Pawnee. My grandparents were Pawnees. I am Skidi and Chaui. I speak for the Pawnee people. We're glad that you are home. We are sorry that you have had to be gone so long. It hurt us to know that you were in museums. It hurt us to know that you were away from the Pawnees. We don't live here anymore. We live in... 2012
Volkmar Gessner James A.r. Nafziger, Robert Kirkwood Paterson, Alison Dundes Renteln, Cultural Law-international, Comparative, and Indigenous (Cambridge University Press, 2010) 60 American Journal of Comparative Law 1105 (Fall 2012) In order to describe its contents, Cultural Property Law, Cultural Heritage Law, Cultural Human Rights, or simply Culture Law could have been alternative titles for this textbook--a fascinating subject in a law school curriculum. First, the social, economic, and political issues involved in this highly disputed field of knowledge are familiar to... 2012
Grant Christensen Judging Indian Law: What Factors Influence Individual Justice's Votes on Indian Law in the Modern Era 43 University of Toledo Law Review 267 (Winter 2012) BOTH political scientists and lawyers are avid scholars of the Supreme Court. However, while the interest of these two scholarly factions may be motivated by the same fascination with jurisprudence and the Court as an institution, they approach the study of the Supreme Court with different methodologies, aims, and objectives. Lawyers give effect to... 2012
Melody Kapilialoha MacKenzie Ke Ala Loa - the Long Road: Native Hawaiian Sovereignty and the State of Hawai'i 47 Tulsa Law Review 621 (Spring 2012) I. Introduction. 622 II. The Genesis of the Native Hawaiian-State Relationship. 624 A. The 1893 Overthrow of the Hawaiian Kingdom. 625 B. Annexation and the Ceded Lands. 626 C. The Hawaiian Homes Commission Act. 628 D. Statehood and the Admission Act. 630 E. 1978 State Constitutional Amendments. 632 III. Recent Controversies in the Native... 2012
Hossein Dabiri Kiss the Ring, but Never Touch the Crown: How U.s. Policy Denies Indian Women Bodily Autonomy and the Save Native Women Act's Attempt to Reverse That Policy 36 American Indian Law Review 385 (2012) Gender violence is a silent crisis affecting many women in Indian Country. One third of Indian women are raped and three out of every five Indian women are assaulted by a partner. Police routinely triage rape and sexual assault cases. What is more, law enforcement and social services agencies designed to help these women in the aftermath of such... 2012
Brian Kolva Lacrosse Players, Not Terrorists : the Effects of the Western Hemisphere Travel Initiative on Native American International Travel and Sovereignty 40 Washington University Journal of Law & Policy 307 (2012) Most sports fans would agree that a world baseball championship without Americans, a world hockey championship without Canadians, or a world golf championship without Scots--the respective creators of the games--would be inadequate and disappointing. But this was precisely the situation lacrosse fans encountered in July 2010, when the Federation of... 2012
Raymond I. Orr, Ph.D Liberal Defaults: the Pending Perception of "Special Financial Rights" among American Indian Nations 47 Tulsa Law Review 515 (Spring 2012) Chief Justice John Marshall noted that the condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence. This description, part of his 1831 decision in Cherokee Nation v. State of Georgia, is a now well-worn passage in the annals of American Indian legal scholarship. A seminal... 2012
Janine Robben Life in Indian Country 72-JAN Oregon State Bar Bulletin 28 (January, 2012) THE TRIBAL-POLICE CRUISER ROLLS ACROSS THE HIGH-DESERT PLAINS OF THE CONFEDERATED TRIBES of the Warm Springs Reservation in Central Oregon. ¶ The smell of sage is so strong that it permeates the car. The sky is filled with thousands of stars that city dwellers never see, and painted Indian ponies huddle together for warmth as the season's first... 2012
Kristen A. Carpenter Limiting Principles and Empowering Practices in American Indian Religious Freedoms 45 Connecticut Law Review 387 (December, 2012) Employment Division v. Smith was a watershed moment in First Amendment law, with the Supreme Court holding that neutral statutes of general applicability could not burden the free exercise of religion. Congress's subsequent attempts, including the passage of Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act,... 2012
Christine Zuni Cruz LINES OF TRIBE 22 Berkeley La Raza Law Journal 77 (2012) I. Introduction. 78 A. Lines of Tribe. 78 B. Color Spectrums, Quantum Theory, and Performance of Identity. 78 C. Escaping the Law of White Space. 79 II. Indigenous Identity. 80 A. Race and Color Spectrum. 80 B. External Operation-Complexity of Mixture and Race Traitors. 82 C. Internal Operation-Complexity, Red Privilege, and Purity Myths. 83 III.... 2012
Jay P. Walters , Shareholder and Director, Fellers Snider Blankenship Bailey & Tippens PC Litigating Disputes in Indian Country 2012 Aspatore 5898575 (2012) I am a red man. If the Great Spirit had desired me to be a white man, he would have made me so in the first place. He put in your heart certain wishes and plans; in my heart he put other and different desires. Each man is good in his sight. It is not necessary for Eagles to be Crows. Sitting Bull Hunkpapa Sioux (Tatanka Iyotake) Sitting Bull was... 2012
by Eric T. Berkman, Framingham, MA Match-e-be-nash-she-wish Band 39 No.7 Preview of United States Supreme Court Cases 264 (4/16/2012) The Secretary of the Interior acquired Indian land in trust for a tribe to operate a gaming facility. Respondent David Patchak, a neighboring resident, alleged that the secretary lacked authority under the Indian Reorganization Act (IRA) to take the land because the tribe was not under federal jurisdiction at the time the law was passed. The... 2012
Jessica A. Solyom , Bryan McKinley Jones Brayboy Memento Mori : Policing the Minds and Bodies of Indigenous Latinas/os in Arizona 42 California Western International Law Journal 473 (Spring 2012) The state of Arizona is home to a large number of American Indian communities. The majority of the state, and its current boundaries, arose as a result of the Mexican American War and the Treaty of Guadalupe-Hidalgo. Today, Arizona houses the largest number of American Indian tribal reservations in the United States (currently twenty-two),... 2012
E. Sunny Greer Na Wai E Ho'ōla I N Iwi? Who Will Save the Bones: Native Hawaiians and the Native American Graves Protection and Repatriation Act 14 Asian-Pacific Law and Policy Journal 33 (2012) Introduction. 34 I. A Mo'olelo of Two Queens. 36 II. The Native Hawaiian Repatriation Movement. 39 III. NAGPRA and Museum Collections. 41 IV. NAGPRA and the Military In Hawai'i. 42 V. NAGPRA and Tribal Lands in Hawai'i. 44 VI. A Tale of Two NAGPRA Cases in Hawai'i. 45 VII. Conclusion. 50 2012
Kelly M. Branam, St. Cloud State University Native Acts: Law, Recognition, and Cultural Authenticity Joanne Barker (Durham, Nc: Duke University Press, 2011) 35 PoLAR: Political and Legal Anthropology Review 354 (November, 2012) Barker's book is a provocative examination of the social and historical context in which some Native nations have equated cultural authenticity with legal legitimacy. Legal legitimacy is defined by the U.S. federal government's policies of recognition and termination of Native nations. Historically, U.S. federal policies also determined membership... 2012
Beth H. Piatote, University of California, Berkeley Native Acts: Law, Recognition, and Cultural Authenticity. By Joanne Barker. Durham: Duke University Press, 2011. 284 Pp. $23.95 Paper 46 Law and Society Review 936 (December, 2012) In Native Acts, Joanne Barker wades into the rough waters of intra-tribal politics, investigating how U.S. legal definitions of categories such as tribe, member, and tradition shape the discourses and distribution of rights within contemporary Native society. Barker argues that these legal terms extend from and uphold U.S. national... 2012
Koral E. Fusselman Native American Health Care: Is the Indian Health Care Reauthorization and Improvement Act of 2009 Enough to Address Persistent Health Problems Within the Native American Community? 18 Washington and Lee Journal of Civil Rights and Social Justice 389 (Spring, 2012) Introduction. 390 I. Origins of the Federal Government's Obligation for Indian Health Care. 394 A. Historical Foundations. 394 B. Indian Health Care Improvement Act of 1976 and Subsequent Amendments. 396 II. Problems Plaguing Native Populations. 400 A. High Vacancy Rates of Health Practitioners. 400 B. High Rates of Diabetes. 402 C. Behavioral... 2012
Suzan Shown Harjo Native American Human Rights Acts: a Brief Account of Some Ways That Native Peoples and Friends Won Repatriation and National Indian Museum Laws 44 Arizona State Law Journal 681 (Summer 2012) Reflecting on the making of the repatriation and national museum laws, I am struck by the fact that the history of these Native American human rights laws has not been written by Native Peoples. Instead, these accounts are being made up by people who have no idea how we made the history with the National Museum of the American Indian Act of 1989... 2012
John Levin Native American Issues and Legal Ethics 26-SEP CBA Record 42 (September, 2012) On August 3, Lawrence R. Baca, the 2012 winner of the ABA's Thurgood Marshall Award, spoke at the CBA on the subject of Native American lawyers, civil rights and Federal Indian law. (The use of the word Indian follows Baca's use in the context of Federal law.) The presentation raised some issues in legal ethics of interest to all lawyers.... 2012
Emily M. Maass Navigating Uncharted Waters: Alaska Native Corporations in a New Era of 8(a) Contracting 29 Alaska Law Review 51 (June, 2012) The highly anticipated finalized rule changes to the Small Business Administration 8(a) Business Development Program will have a prominent impact on 8(a) certified Alaska Native Corporations (ANCs). This Article evaluates the weaknesses in the previous regulations and analyzes how the revisions will effect ANC participation. The Article argues that... 2012
Robert T. Anderson Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280 87 Washington Law Review 915 (December, 2012) This Article canvasses the jurisdictional rules applicable in American Indian tribal territories--Indian country. The focus is on a federal law passed in the 1950s, which granted some states a measure of jurisdiction over Indian country without tribal consent. The law is an aberration. Since the adoption of the Constitution, federal law... 2012
Devin Ryan Off the Reservation: Native American Tribes Reasserting Sovereign Immunity to Trump Arbitration Agreements 4 Yearbook on Arbitration and Mediation 286 (2012) The Supreme Court's decisions in Turner v. United States and United States v. U.S. Fidelity & Guaranty Co. firmly established the doctrine of tribal sovereign immunity. A Native American tribe enjoys sovereign immunity from suit, unless Congress has authorized the suit or the tribe has waived its immunity. Any such waiver must be clear and... 2012
Freya Ray Preserving Indian Preference for Native American Self-governance 36 American Indian Law Review 223 (2012) Viewing the results of [the U.S. guardianship over Indian wards], it is difficult for me to speak dispassionately. I shall not ask my colleagues to examine in detail a certain page of history upon which no American may gaze with feeling of pride. Suffice it to say that it reveals an almost uninterrupted succession of broken treaties and promises,... 2012
  Proposed Rule Would Permit Delegation of Psd Program to Indian Tribes 22 No.2 Air Pollution Consultant 2.41 (2012) On December 30, 2011 (76 FR 82234-82238), EPA proposed to revise the federal prevention of significant deterioration (PSD) regulations to permit the agency to delegate the program to interested Indian tribes. Currently, the regulatory language in 40 CFR §52.21 limits the agency's ability to delegate the federal PSD program to Indian tribes. The... 2012
Alexander Hogan Protecting Native American Communities by Preserving Sovereign Immunity and Determining the Place of Tribal Businesses in the Federal Bankruptcy Code 43 Columbia Human Rights Law Review 569 (Spring, 2012) Revenues raised through Native American enterprises provide crucial support to the Native American communities in which these businesses are located. In particular, many tribes depend upon Indian casino gaming revenues to fund health care, child care, emergency services (police, fire, and ambulance), educational assistance programs, cultural... 2012
Allison M. Dussias PROTECTING POCAHONTAS'S WORLD: THE MATTAPONI TRIBE'S STRUGGLE AGAINST VIRGINIA'S KING WILLIAM RESERVOIR PROJECT 36 American Indian Law Review 1 (2012) I. Introduction. 3 II. The Past Is Always with Us: Mattaponi Dispossession and Persistence. 6 A. Envisioning Pocahontas's World. 8 1. Water. 11 2. Fish. 15 3. Land. 17 B. Dispossessing the Powhatan Tribes. 20 1. Claims to Land, Maize, and People. 21 2. Treaties and Reservations. 27 C. Perseverance, Adaptation, and Survival. 33 1. The Eighteenth... 2012
Derek H. Ross Protecting the Democratic Process in Indian Country Through Election Monitoring: a Solution to Tribal Election Disputes 36 American Indian Law Review 423 (2012) Elections in America are prone to controversy. Each election cycle, it is common to see disputes litigated for weeks after the initial votes have been counted. These controversies occur in all levels of elections, including those for state and local governments. The media report extensively on these disputes. There is also a large amount of... 2012
Thalia González Reclaiming the Promise of the Indian Child Welfare Act: a Study of State Incorporation and Adoption of Legal Protections for Indian Status Offenders 42 New Mexico Law Review 131 (Spring 2012) The 1978 Indian Child Welfare Act (ICWA or Act) established minimum federal standards aimed at protecting the rights of Indian children, families, and tribes; however, inconsistency in application of the Act's jurisdictional, procedural, and substantive provisions has led to mounting concerns that state courts are not only violating the language... 2012
Caitlin E. Huggins Reducing Ambiguity or Increasing Contracting Costs? Interpreting Ucp 600 Article 16 Obligations and Fortis Bank V. Indian Overseas 3 George Mason Journal of International Commercial Law 312 (Spring, 2012) Research done by the International Chamber of Commerce (ICC) in recent years suggests that as many as 70% of documents presented as letters of credit (LCs) were found discrepant, or exhibited inconsistencies from negotiated terms and deemed insufficient to allow payment to proceed. This finding spurred the ICC to include more detailed directives... 2012
W. Richard West, Jr. Repatriation and the National Museum of the American Indian: Reflections on a Journey of Cultural Redemption 44 Arizona State Law Journal 907 (Summer 2012) After being invited some months ago to talk with you today about repatriation and the National Museum of the American Indian (NMAI), I pondered the title of the conference, Repatriation at Twenty: A Gathering on Native Self-Determination and Human Rights. Notwithstanding my time at the helm of our piece of the rock on the National Mall in... 2012
  Report on Indian Indirect Transfer Rules May Benefit Foreign Investors 23 Journal of International Taxation 10 (December, 2012) Earlier this year, India's Prime Minister established an Expert Committee to review legislation that would tax, retroactively, transfers of shares or interests in a foreign company when the transfer derived its value substantially from underlying Indian assets (indirect transfers). In a significant development, the Committee has recommended that... 2012
Stacy L. Leeds , Elizabeth Mashie Gunsaulis Resistance, Resilience, and Reconciliation: Reflections on Native American Women and the Law 34 Thomas Jefferson Law Review 303 (Spring 2012) Rare in the field of American Indian Law is the opportunity for celebration, particularly when it comes to legal and political victories for Native American women. Indians lose the majority of the cases that advance far enough to make it into published court decisions. Tribal communities are inundated with injustices for which remedies are never... 2012
Brett J. Stavin Responsible Remedies: Suggestions for Indian Tribes in Trust Relationship Cases 44 Arizona State Law Journal 1743 (Winter 2012) The fiduciary, or trust, relationship between the federal government and the Indian tribes is a cornerstone of federal Indian law. It has been branded as justification for the federal government's overbearing and sometimes outright colonialist treatment of Indian tribes. At the same time, it has been cited by the federal government itself as... 2012
Ian Peach Section 15 of the Canadian Charter of Rights and Freedoms and the Future of Federal Regulation of Indian Status 45 U.B.C. Law Review 103 (January, 2012) In administering the Indian Act and providing programs and services to Aboriginal peoples, the federal government has created numerous distinctions between those who qualify for access and those who do not, on the basis of residency and ability to be registered under the Indian Act (also known as Indian status). The distinctions that the federal... 2012
Benjamin A. Kahn Separate and Unequal: Environmental Regulatory Management on Indian Reservations 35-SPG Environs Environmental Law and Policy Journal 203 (Spring 2012) I. Introduction. 205 II. Statutory Obligations: The Federal Government Must Treat Tribes Like States. 206 A. Safe Drinking Water Act. 206 B. Clean Water Act. 207 C. Clean Air Act. 208 D. Federal Insecticide, Fungicide, and Rodenticide Act. 209 E. Solid Waste Disposal Act (the Resource Conservation and Recovery Act). 209 III. Fiduciary Obligations:... 2012
Renisa Mawani Specters of Indigeneity in British-indian Migration, 1914 46 Law and Society Review 369 (June, 2012) Colonial legal histories of indigeneity and British-Indian migration have not often been placed in conversation with one another. This article pursues such a project by tracing indigeneity as a spectral presence that emerged with uneven regularity in juridico-political conflicts over British-Indian migration. Specifically, I focus on the 1914... 2012
Mary Kathryn Nagle STANDING BEAR V. CROOK: THE CASE FOR EQUALITY UNDER WAAXE'S LAW 45 Creighton Law Review 455 (April, 2012) This hand is not the color of yours, but if I pierce it, I shall feel pain. If you pierce your hand, you also feel pain. The blood that will flow from mine will be of the same color as yours. I am a man. The same God made us both. Chief Standing Bear, Standing Bear v. Crook, May 1879. In 1879, a full seventy-five years before the United States... 2012
Hayley Weedn STAY OUT OF THE COOKIE JAR: REVISITING MARTINEZ TO EXPLAIN WHY THE U.S. SHOULD KEEP ITS HANDS OUT OF TRIBAL CONSTITUTIONALISM AND INTERNAL SELF-GOVERNANCE 20 Willamette Journal of International Law and Dispute Resolution 18 (2012) I. Introduction. 18 II. Background: The Case of Santa Clara Pueblo v. Martinez. 20 III. Purpose and Form (and Problems): Champagne's Tribal Constitutional Models. 24 A. Traditional Model. 25 B. Colonialist Model (Indian Reorganization Act Constitutions). 26 IV. The Case Study: Membership Requirements and Martinez. 29 A. The IRA Model Applied. 29... 2012
Diana Lopez Jones Stock Stories, Cultural Norms, and the Shape of Justice for Native Americans Involved in Interparental Child Custody Disputes in State Court Proceedings 5 Phoenix Law Review 457 (Spring 2012) Prologue. 458 I. Introduction. 460 II. Swapping a Story for a Remedy: In the Courtroom, Litigants Exchange Narratives in Competition for Their Desired Legal Outcome. 462 A. Familiar Stock Stories Tend to Favorably Influence the Judicial Narrative. 463 B. Familiar Judicial Narratives Tend to Enhance a Litigant's Perception of Justice. 464 III.... 2012
Kathleen Sands Territory, Wilderness, Property, and Reservation: Land and Religion in Native American Supreme Court Cases 36 American Indian Law Review 253 (2012) In two trilogies of Supreme Court decisions, both involving Native Americans, land is a key metaphor, figuring variously as property, territory, wilderness, and reservation. The first trilogy, written by Chief Justice John Marshall, comprises Johnson v. M'Intosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832). The second... 2012
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