AuthorTitleCitationSummaryYear
G.M. Filisko Global Settlements 99-OCT ABA Journal 25 (October, 2013) Meditation in India? Om, big. Mediation in India? Um, not as big. That, however, is changing, thanks to Victor Schachter, a labor and employment partner at Fenwick & West in Mountain View, Calif. Schachter set up the first court-annexed mediation centers in India, and he plans to follow suit in additional countries through his just-launched... 2013
Breann Swann Nu'uhiwa Government of the People, by the People, for the People: Cultural Sovereignty, Civil Rights, and Good Native Hawaiian Governance 14 Asian-Pacific Law and Policy Journal 57 (2013) I.. Introduction 58 II.. Cultural Sovereignty 62 III.. Civil Rights in Native Hawaiian History and Tradition 65 A. Civil Rights Prior to Contact 66 B. The Displacement of Kuleana 69 C. The Native Hawaiian Response 73 D. The Persistence of Traditional Values in Contemporary Native Hawaiian Society 75 IV.. Federal Expectations Regarding Native... 2013
Donna S. Salcedo Hawaiian Land Disputes: How the Uncertainty of the Native Hawaiian Indigenous Tribal Status Exacerbates the Need for Mediation 14 Cardozo Journal of Conflict Resolution 557 (Winter 2013) Many people see the Hawaiian Islands as a paradise in the Pacific Ocean. However, most are unaware that history has left an unpleasant and permanent scar on the original inhabitants of the islands, the Native Hawaiians. It is often forgotten that the islands were once ruled by its monarchy. In fact, the Hawaiian Kingdom was not overthrown until... 2013
Benjamin Thomas Greer Hiding Behind Tribal Sovereignty: Rooting out Human Trafficking in Indian Country 16 Journal of Gender, Race and Justice 453 (Spring 2013) The white man's police have protected us only as well as the feathers of a bird protect it from the frosts of winter. Crowfoot, Blackfeet Chief Future generations will not excuse those who turn a blind eye to [human trafficking]. United States Secretary of State, Condoleezza Rice Native Americans are a profoundly strong and proud, however insular,... 2013
Vinita B. Andrapalliyal History Repeats Itself: Parallels Between Current-day Threats to Immigrant Parental Rights and Native American Parental Rights in the Twentieth Century 8 University of Massachusetts Law Review 562 (Spring, 2013) Immigrant parents are currently burdened with unique risks to their parental rights, risks that bear little relation to their ability to care for their children. Recent developments in family and immigration law, historical cultural prejudices against non-Western parenting traditions, and poor immigrants' limited access to the U.S. legal system are... 2013
Ryan D. Dreveskracht House Republicans Add Insult to Native Women's Injury 3 University of Miami Race & Social Justice Law Review Rev. 1 (2013) Introduction. 1 Background and Context. 2 What's the Big Deal? It Isn't That Bad.. 12 Constitutionality and Supreme Court Review. 21 Conclusion. 27 2013
Rebecca Cruz Guiao How Tribal Water Rights Are Won in the West: Three Case Studies from the Northwest 37 American Indian Law Review 283 (2012-2013) The Klamath River Basin controversy in Oregon and California represents complex legal, social, economic, and environmental issues involving a myriad of interested parties from tribal, federal, state, local, and public interest organizations. An apparent end to the controversy came on February 18, 2010, when over fifty organizations signed the... 2013
Paul Finkelman I Could Not Afford to Hang Men for Votes. Lincoln the Lawyer, Humanitarian Concerns, and the Dakota Pardons 39 William Mitchell Law Review 405 (2013) I. Political Considerations and the Pardon Issue. 409 II. What We Call the Conflict, and Why That Matters. 414 III. What Caused the Conflict?. 419 IV. The Politics of the Conflict. 422 V. The Trials. 424 VI. The Administration and the Dakota Trials. 433 VII. Lieber, the Law of War, and the Dakota. 440 VIII. I Could Not Afford to Hang Men for... 2013
  Indian Canon Originalism 126 Harvard Law Review 1100 (February, 2013) Indian treaties are quasi-constitutional documents. So why not read them like constitutions? In fact, scholars of Indian law have urged federal judges to interpret Indian treaties in the same manner as [they do] constitutional provisions. But no scholar has ever explained how the principles of constitutional interpretation would actually apply... 2013
  Indian Child Welfare Act 40 No.8 Preview of United States Supreme Court Cases 376 (8/10/2013) Overview: 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... 2013
  Indian Child Welfare Act -- Termination of Parental Rights -- Adoptive Couple V. Baby Girl 127 Harvard Law Review 368 (November, 2013) In the decades leading up to 1978, large numbers of Indian families were broken up through forced adoption or foster-care placement of Indian children, usually in non-Indian homes. To stem this wholesale removal of Indian children, Congress enacted the Indian Child Welfare Act of 1978 (ICWA), which sets rigorous standards to govern state court... 2013
Matthew L.M. Fletcher Indian Courts and Fundamental Fairness: Indian Courts and the Future Revisited 84 University of Colorado Law Review 59 (Winter, 2013) This article comes out of the University of Colorado Law Review's symposium issue honoring the late Dean David H. Getches. It begins with Dean Getches's framework for analyzing Indian courts. I revisit Indian Courts and the Future, the 1978 report drafted by Dean Getches, and the historic context of the report. I compare the 1978 findings to the... 2013
J. Harold McClure Indian Intercompany Loans Litigation 24 Journal of International Taxation 60 (June, 2013) The Indian tax courts have wrestled with one legal issue and two economic issues regarding the extension of intercompany loans by Indian parent companies to their foreign affiliates. The decision by the Mumbai Bench of the Income Tax Appellate Tribunal (ITAT) in Tata Autocomp Systems Limited is the most recent Indian court case involving... 2013
J. Harold McClure Indian Transfer Pricing Cases: Good News for Well-articulated Tnmm Approaches 24 Journal of International Taxation 35 (March, 2013) When facts support a modest markup over operating expenses for the provision of services, and the transfer pricing report is well articulated, the Indian courts tend to respect intercompany pricing even if the Indian tax authorities attack it. Multinationals often establish foreign affiliates to perform services on behalf of the parent, with the... 2013
Oswaldo R. Ruiz-Chiriboga Indigenous Corporal Punishment in Ecuador and the Prohibition of Torture and Ill Treatment 28 American University International Law Review 975 (2013) I. INTRODUCTION. 976 II. LEGAL PLURALISM IN ECUADOR. 981 III. INTERNATIONAL INSTRUMENTS THAT PROTECT THE RIGHT TO MAINTAIN INDIGENOUS LAWS. 983 IV. TORTURE IN INTERNATIONAL AND ECUADORIAN LAW. 986 A. Torture and Culture. 990 1. The Changing Nature of Torture. 991 2. Lawful Sanctions. 995 a. Corporal Punishment. 996 b. Imprisonment. 1000 c. Death... 2013
Upasana Khatri Indigenous Peoples' Right to Free, Prior, and Informed Consent in the Context of State-sponsored Development: the New Standard Set by Sarayaku V. Ecuador and its Potential to Delegitimize the Belo Monte Dam 29 American University International Law Review 165 (2013) I. INTRODUCTION. 166 II. BACKGROUND. 168 A. The Belo Monte Hydroelectric Project. 168 1. The Development of the Controversial Dam. 168 2. Projected Impacts of the Belo Monte Dam. 173 B. The Right to Free, Prior, and Informed Consent and Its Legal Underpinnings. 176 1. The American Convention on Human Rights: Article 21 and Its Interpretive History.... 2013
Jacinta Ruru Indigenous Restitution in Settling Water Claims: the Developing Cultural and Commercial Redress Opportunities in Aotearoa, New Zealand 22 Pacific Rim Law & Policy Journal 311 (March, 2013) Water is important to all peoples, including indigenous peoples. In recent years, the government in Aotearoa, New Zealand has utilized various cultural redress-type legal mechanisms to recognize and revive the importance of water to the Maori people's identity, health, and wellbeing. These mechanisms create revolutionary modern... 2013
Dinisha L. Fernando Intellectual Property and the Protection of Indigenous Culture in the United States and New Zealand: an Effective Solution for Indigenous Communities? 12 Cardozo Public Law, Policy and Ethics Journal 149 (Fall 2013) Introduction. 149 I. Indigenous Communities and the Protection of their Culture and Traditions. 151 II. The Rights of the Maori in New Zealand National Law. 158 III. The Rights of Native Americans in United States National Law. 168 IV. The Effectiveness of Intellectual Property in Protecting Indigenous Cultural Property. 178 Conclusion. 180 2013
William Wood IT WASN'T AN ACCIDENT: THE TRIBAL SOVEREIGN IMMUNITY STORY 62 American University Law Review 1587 (August, 2013) In its latest pronouncement on the subject, the Supreme Court suggested in Kiowa Tribe of Oklahoma v. Manufacturing Technologies that tribal sovereign immunity is an accidental doctrine that developed with little analysis or reasoning. The Court, however, overlooked important history, context, and (some of its own) precedent which shows that the... 2013
Kirsten Matoy Carlson Jurisdiction and Human Rights Accountability in Indian Country 2013 Michigan State Law Review 355 (2013) Introduction. 355 I. The Enforcement Environment, Human Rights, and Human Rights Accountability in Indian Country. 362 A. The Enforcement Environment in Indian Country. 363 B. Government Accountability for Private Acts of Violence Under International Law. 367 C. Federal Barriers to Tribal Criminal Authority Undermine Human Rights Accountability.... 2013
Danielle C. Davis Land in the Second Decade: the Evolution of Indigenous Property Rights and the Energy Industry in the United States and Brazil 34 Energy Law Journal 667 (2013) I. Introduction. 667 II. Background. 669 A. Historical Indigenous Property Rights and the Discovery Doctrine. 669 1. Discovery of the Americas and Subsequent Colonialism. 669 2. Concepts of Property, Mineral Rights, and State Ownership. 670 3. The Discovery Doctrine. 671 B. The Pre-Declaration Era of International Interest in Indigenous Rights. 673... 2013
Kristen A. Carpenter , Eli Wald Lawyering for Groups: the Case of American Indian Tribal Attorneys 81 Fordham Law Review 3085 (May, 2013) Lawyering forgroups, broadly defined as the legal representation of a client who is not an individual, is a significant and booming phenomenon. Encompassing the representation of governments, corporations, institutions, peoples, classes, communities, and causes, lawyering for groups is what many, if not most, lawyers do. And yet, the dominant... 2013
Kristen A. Carpenter , Eli Wald LAWYERING FOR GROUPS: THE CASE OF AMERICAN INDIAN TRIBAL ATTORNEYS 81 Fordham Law Review 3085 (May, 2013) Lawyering forgroups, broadly defined as the legal representation of a client who is not an individual, is a significant and booming phenomenon. Encompassing the representation of governments, corporations, institutions, peoples, classes, communities, and causes, lawyering for groups is what many, if not most, lawyers do. And yet, the dominant... 2013
Susann Funderud Skogvang Legal Questions Regarding Mineral Exploration and Exploitation in Indigenous Areas 22 Michigan State International Law Review 321 (2013) Introduction. 321 I. Current Interest on the Topic. 322 L1-2 II. International Legal Framework and Standards A. Generally. 327 B. Applicable Substantial Rights. 328 1. Superior Principles. 328 2. Right to Property. 330 3. Right to Culture. 333 4. Right to Self-Determination. 335 C. Applicable Procedural Rights. 336 D. U.N. Guiding Principles on... 2013
Uday Chandra Liberalism and its Other: the Politics of Primitivism in Colonial and Postcolonial Indian Law 47 Law and Society Review 135 (March, 2013) Liberalism is widely regarded as a modern intellectual tradition that defends the rights and freedoms of autonomous individuals. Yet, in both colonial and postcolonial contexts, liberal theorists and lawmakers have struggled to defend the rights and freedoms of political subjects whom they regard as primitive, backward, or indigenous.... 2013
Sally Harrison May I See Your Id? How Voter Identification Laws Disenfranchise Native Americans' Fundamental Right to Vote 37 American Indian Law Review 597 (2012-2013) Voter identification (ID) laws played a contentious role in the recent 2012 presidential election. It is uncertain whether these laws will emerge from the courts unscathed, but it is certain that voter ID laws have a negative impact on the ability of Native Americans to vote. The right to vote is one of the pillars upon which our democratic... 2013
by Steven D. Schwinn, The John Marshall Law School, Chicago, IL Michigan 41 No.3 Preview of United States Supreme Court Cases 135 (12/2/2013) Federal law provides for federal court jurisdiction over cases involving federal statutes, and cases to enjoin certain gaming activities on Indian lands. At the same time, Indian tribes enjoy tribal sovereign immunity from certain suits. This case tests the extent of both federal jurisdiction and Indian tribal sovereign immunity. The State of... 2013
Lindsey Schuler Modern Age Protection: Protecting Indigenous Knowledge Through Intellectual Property Law 21 Michigan State International Law Review 751 (2013) Abstract. 752 Introduction, to a Modern Age 752 I. Background: Development of Domestic, Sui Generis, and International Intellectual Property Law Protection. 753 A. United States Intellectual Property Forms and Definitions. 753 B. Sui Generis. 755 C. International Intellectual Property Protections. 757 1. World Trade Organization. 758 2. World... 2013
Michael M. Epstein Mutiny on the Pirate Ship: Indigenous Infringement and the Development of a Media Asset 21 Michigan State International Law Review 631 (2013) Introduction. 631 I. Understanding the Challenge. 632 II. Toward the Building of a Media Asset. 636 III. Practicalities. 641 Conclusion. 644 2013
Laura Ruth Talbert Native American Graves Protection and Repatriation Act: Requiring Federal Recognition Digs its Own Grave 37 American Indian Law Review 171 (2012-2013) The desire to bury our loved ones is a concept that dates back to the beginning of humankind. The Bible introduces burials in the Book of Genesis with Abraham requesting land from the Hittites to bury his wife, Sarah. Apart from literary records of burial practices, archaeologists have discovered physical evidence of the sacredness of burial sites.... 2013
Jeffrey Adam Sachs Native Courts and the Limits of the Law in Colonial Sudan: Ambiguity as Strategy 38 Law and Social Inquiry 973 (Fall, 2013) This article offers a way of thinking about colonial-era legal reform that departs from traditional narratives by highlighting the importance of legal ambiguity in state building projects. Following the establishment of Native Administration in the Sudan in the early 1920s, the British colonial government conferred expansive judicial and... 2013
Quin M. Sorenson Native Village of Kivalina V. Exxonmobil Corp.: the End of "Climate Change" Tort Litigation? 44 No.3 ABA Trends Trends 1 (2013) The decision of the Ninth Circuit in Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012), dealt another blow to recent attempts to use the federal common law tort system to address issues relating to greenhouse gas emissions and climate change. The Supreme Court held last year, in American Electric Power Co. v. Connecticut,... 2013
Nicole Johnson Native Village of Kivalina V. Exxonmobil Corp: Say Goodbye to Federal Public Nuisance Claims for Greenhouse Gas Emissions 40 Ecology Law Quarterly 557 (2013) The Native Village of Kivalina is located in a remote part of Alaska. Through sea level rise and the increase of coastal erosion, this area has been greatly affected by global climate change. The sea ice that once protected the village's land has been worn down, and storms that once hit the ice now devastate the area. Seeking monetary damages for... 2013
Paul H. Robinson Natural Law & Lawlessness: Modern Lessons from Pirates, Lepers, Eskimos, and Survivors 2013 University of Illinois Law Review 433 (2013) The natural experiments of history present an opportunity to test Hobbes's view that government and law are the wellspring of social order. Groups have found themselves in a wide variety of situations in which no governmental law existed, from shipwrecks to gold mining camps to failed states. Yet, despite the wide variety of situations, common... 2013
Kathryn A. Mayer Negotiating past the Zero-sum of Intractable Sovereignty Positions by Exploring the Potential of Possible Party Interests: a Proposed Dispute Resolution Framework for the Tobacco Tax Debacle Between the State of New York & the Seneca Nation of Indians 28 Ohio State Journal on Dispute Resolution 771 (2013) In 1994, the Supreme Court declared in Department of Taxation & Finance of New York v. Milhelm Attea & Bros., Inc. that legislation passed by the State of New York imposing state taxes on cigarette sales made on Indian reservations to non-Indians was facially permissible. However, by August 13, 2010-over a decade after the Supreme Court issued its... 2013
Sarah A. Garrott New Ways to Fulfill Old Promises: Native American Hunting and Fishing Rights as Intangible Cultural Property 92 Oregon Law Review 571 (2013) I. Hunting and Fishing Rights Are an Integral Part of Native American Culture. 574 A. The Native American Worldview and the Importance of Hunting and Fishing as a Spiritual Practice. 574 B. The Evolution of Native American Hunting and Fishing Practices. 576 C. The Cultural Importance of Hunting and Fishing to Current Native American Tribes. 579 II.... 2013
Judith Kimerling Oil, Contact, and Conservation in the Amazon: Indigenous Huaorani, Chevron, and Yasuni 24 Colorado Journal of International Environmental Law and Policy 43 (Winter 2013) I. Introduction. 44 II. Oil Boom. 46 III. National Integration and Land Rights. 47 IV. Environmental Protection in the Oil Patch. 57 V. Litigation in Texaco's Homeland. 63 VI. The Lago Agrio Litigation. 72 VII. The Intangible Zone and Conservation in Yasuni. 98 VIII. Conclusion. 113 The Huaorani (Waorani) are hunters and gatherers who have lived in... 2013
Arul George Scaria Online Piracy of Indian Movies: Is the Film Industry Firing at the Wrong Target? 21 Michigan State International Law Review 647 (2013) Introduction. 648 I. Online Piracy of Indian Movies. 649 II. Effectiveness of the Legal Measures Against Online Piracy. 657 III. Sustainable Solutions for Online Piracy. 660 Conclusion. 663 2013
Brian Sheets Papers or Plastic: the Difficulty in Protecting Native Spiritual Identity 17 Lewis & Clark Law Review 591 (2013) Sellers of Native ceremonies offer the opportunity to non-Natives to participate in ceremonial traditions with roots in Native spiritual communities--for a price. These plastic shamans have appropriated some Native ceremonies, sometimes with fatal results. Commodifying these spiritual practices removes important communal identities from their... 2013
Dorothée Cambou , Stefaan Smis Permanent Sovereignty over Natural Resources from a Human Rights Perspective: Natural Resources Exploitation and Indigenous Peoples' Rights in the Arctic 22 Michigan State International Law Review 347 (2013) Introduction. 348 I. Permanent Sovereignty over Natural Resources from the Perspective of Traditional International law. 350 A. Interstate Relations and the Delimitation of State Sovereignty in the Arctic. 350 B. Intrastate Relations and the Implication of Sovereignty for Indigenous Peoples in the Arctic. 354 II. Permanent Sovereignty Over Natural... 2013
Charles Prior Permitting Problems: Environmental Justice and the Miccosukee Indian Tribe 3 Barry University Environmental and Earth Law Journal 163 (2013) The Miccosukee Tribe of Indians is a federally recognized tribe that works and resides in the Everglades region of the State of Florida. The Miccosukee have been battling lax water quality standards through lawsuits since the 1990's. Recent rulings in federal court held that the State of Florida has failed to comply with the Clean Water Act and... 2013
Caitlain Devereaux Lewis Policies of Inequity - a World Apart: a Comparison of the Policies Toward Indigenous Peoples of a Post-colonial Developing Nation to Those of a Post-industrial Developed Nation 37 American Indian Law Review 423 (2012-2013) A people once numerous, powerful, and truly independent, found by our ancestors in the quiet and uncontrolled possession of an ample domain, gradually sinking beneath our superior policy, our arts and our arms, have yielded their lands . . ., until they retain no more of their formerly extensive territory than is deemed necessary to their... 2013
Jeffrey R. Sprague, Claudia G. Vincent, Tary J. Tobin, CHiXapkaid (Michael Pavel) Preventing Disciplinary Exclusions of Students from American Indian/alaska Native Backgrounds 51 Family Court Review 452 (July, 2013) We present 2009-2010 data on disciplinary exclusions in schools and juvenile incarcerations from one state in the United States to demonstrate that American Indian/Alaska Native (AI/AN) students: (a) are disproportionately overrepresented in disciplinary exclusions from the classroom, (b) lose 4.5 times as many student days as White students due to... 2013
Michael Blakeney Protecting the Spiritual Beliefs of Indigenous Peoples--australian Case Studies 22 Pacific Rim Law & Policy Journal 391 (March, 2013) This article examines the extent to which the spiritual beliefs of Aboriginal and Torres Strait Islander Peoples are protected under current Australian law. The first significant recognition by the High Court of Australia of the legal rights of indigenous peoples was in relation to native title over real property. As those peoples define... 2013
Bethany R. Berger RACE, DESCENT, AND TRIBAL CITIZENSHIP 4 California Law Review Circuit 23 (April, 2013) What is the relationship between descent-based tribal citizenship requirements and race or racism? This essay argues that tribal citizenship laws that require Indian or tribal descent are generally neither the product nor the source of racism in federal Indian law and policy. And while descent does affect multiple areas of federal Indian law and... 2013
Angelique Townsend EagleWoman, Sheri Freemont, Gloria Valencia-Weber, Joseph Williams Recognizing the Importance of Indian Law on State Bar Examinations 60-APR Federal Lawyer 30 (April, 2013) Indian law is one of the most complicated areas of law in the United States due to the jurisdictional and substantive issues present. Overlapping governmental interests commonly involve federal jurisdiction, tribal jurisdiction, and at times, state jurisdictional components. There is also the possibility of multiple tribal jurisdictions being... 2013
Aparna Polavarapu Reconciling Indigenous and Women's Rights to Land in Sub-saharan Africa 42 Georgia Journal of International and Comparative Law 93 (2013) I. Introduction 94 II. The Move to Engage with Customary Law 97 III. Legal Frameworks 100 A. International and Regional Indigenous Rights Frameworks 101 B. Formalism in the Women's Rights Legal Frameworks 106 IV. The Gendered Difficulties of Customary and Statutory Law 110 A. Women's Rights Under Pre-Colonial Customary Tenure 111 B. Women and... 2013
Ryan Seelau Regaining Control over the Children: Reversing the Legacy of Assimilative Policies in Education, Child Welfare, and Juvenile Justice That Targeted Native American Youth 37 American Indian Law Review 63 (2012-2013) It is conservatively estimated that in 1491 there were at least forty million people living in the Americas. By the time the United States was founded in 1776, that number had decreased so substantially that federal Indian policy during President Washington's tenure was to let non-Indian population growth force the savage as the wolf, to retire.... 2013
David H. Getches Remarks of David H. Getches: Federal Bar Association Indian Law Conference (April 7, 2011) 84 University of Colorado Law Review 201 (Winter, 2013) At no other occasion is there so much expertise in Indian law gathered in one place, at one time. It is a tribute to the [Federal Bar Association (FBA)] that it does this year after year, renewing our exploration of a subject so vital and exciting to all who come together and so critical to the survival of tribal nations. Thanks to my Colorado... 2013
Joanna (Joey) Meldrum Reservation and Quantification of Indian Groundwater Rights in California 19 Hastings West-Northwest Journal of Environmental Law, Policy 277 (Summer 2013) I. Tribal History II. Importance of Water to Tribes in Southern California A. Surface Water B. Groundwater III. Users of Water on and under the Santa Ynez Reservation A. Current Groundwater Use by the Santa Ynez Chumash B. Water District C. Private Landowners and City of Solvang IV. Tribal Water Rights A. Priority Date of Reserved Water Right B.... 2013
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