Gavin Clarkson , David DeKorte Unguarded Indians: the Complete Failure of the Post-oliphant Guardian and the Dual-edged Nature of Parens Patriae 2010 University of Illinois Law Review 1119 (2010) Indian Country is the only location in the United States where the race of both the victim and the offender are relevant for purposes of jurisdiction and prosecution. As a result, American Indian women and children are victimized at astonishingly higher rates than the rest of society, primarily by non-Indian offenders. Pedophiles have found... 2010
by Daniel Thies, Houston, TX United States 38 No.2 Preview of United States Supreme Court Cases 60 (11/1/2010) The Court of Federal Claims (CFC) has jurisdiction over claims for money damages against the government, but it cannot hear any claim for or in respect to which the plaintiff has a suit pending in another court. The plaintiff had one suit for equitable relief pending in a district court when it sued on the same underlying facts in the CFC for... 2010
  United States Reviews Un Declaration on Rights of Indigenous Peoples 104 American Journal of International Law 528 (July, 2010) The United States has initiated a review of its position on the UN Declaration on the Rights of Indigenous Peoples and has created a Web site to solicit public input. (The United States, along with Australia, Canada, and New Zealand, voted against the adoption of the declaration by the General Assembly in 2007.) The Department of State's June 2010... 2010
Dennis Puzz, Jr. Untangling the Jurisdictional Web: Determining Indian Child Welfare Jurisdiction in the State of Wisconsin 36 William Mitchell Law Review 724 (2010) I. Introduction. 724 II. The Interplay Between The ICWA and Public Law 280. 725 III. The Impact of Wisconsin's Child Protective Services Law. 732 IV. Bureau of Indian Affairs and Removal Authority. 733 V. Reassumption of Exclusive Jurisdiction Under The ICWA. 733 VI. Voluntary Actions and State Court Jurisdiction. 734 VII. Child Welfare Services... 2010
Ryan W. Koppelman Using Native Files in Legal Proceedings 27 No.6 GPSolo 40 (September, 2010) During discovery, parties in litigation commonly produce electronic versions of e-mails, databases, and Microsoft Word and Excel documents. These so-called native files (natives) may be produced instead of, or in addition to, paper documents or other electronic versions such as TIFF (Tagged Image File Format) or PDF (Portable Document Format)... 2010
Ryan W. Koppelman Using Native Files in Legal Proceedings 6 No.3 SciTech Lawyer Law. 8 (Winter, 2010) During discovery parties in litigation commonly produce electronic versions of emails, databases, and Microsoft Word and Excel documents. These so-called native files (natives) may be produced instead of, or in addition to, paper or other versions of the documents like TIFFs or PDFs. When it is appropriate to produce native files and their... 2010
Jenna Gray-Hildenbrand We Have a Religion: the 1920s Pueblo Indian Dance Controversy and American Religious Freedom. By Tisa Wenger. University of North Carolina Press 2009. Pp. 360. $22.95. Isbn: 0-807-85935-4. 25 Journal of Law and Religion 573 (2009-2010) The First Amendment protects the freedom of religion--because of this, individuals and communities facing legal restrictions on their ceremonial practices must articulate the religious qualities of their practice in order to receive constitutional protection. For some, like the Pueblo Indians Tisa Wegner discusses in her new book We Have a... 2010
Stephanie Spangler When Indigenous Communities Go Digital: Protecting Traditional Cultural Expressions Through Integration of Ip and Customary Law 27 Cardozo Arts and Entertainment Law Journal 709 (2010) I. Introduction. 710 II. TCEs and Moral Rights of Indigenous Communities. 712 A. What Are TCEs and Why Should TCEs Be Protected?. 712 B. TCEs & IP: The Dual Purpose Relationship. 715 C. Conventional IP and the Incentive for Creation. 715 D. Conventional IP and Moral Rights. 717 E. Conventional IP and Communal Moral Rights of Indigenous Communities.... 2010
Steve Sanders Where Sovereigns and Cultures Collide: Balancing Federalism, Tribal Self-determination, and Individual Rights in the Adoption of Indian Children by Gays and Lesbians 25 Wisconsin Journal of Law, Gender & Society 327 (Fall 2010) Introduction. 327 I. Background. 331 A. ICWA and Adoption. 331 B. Gay and Lesbian Adoption in the United States. 333 C. Indian Attitudes Toward Homosexuality and Same-sex Relationships. 334 II. Gay/Lesbian Adoptions in Tribal Court. 337 A. In Tribal Court, Tribal Law Controls. 338 B. Full Faith and Credit for Tribal Adoption Decrees. 339 III.... 2010
Dewi Ioan Ball Williams V. Lee (1959)?50 Years Later: a Reassessment of One of the Most Important Cases in the Modern-era of Federal Indian Law 2010 Michigan State Law Review 391 (Summer, 2010) Abstract. 391 I. Historical Background of Federal Indian Law. 393 II. The Williams v. Lee Opinion and the Indian Sovereignty Doctrine. 394 III. Williams v. Lee (1959) and the Seeds of the Erosion of the Indian Sovereignty Doctrine. 403 IV. The Legal Fall-out from the Williams v. Lee Decision. 408 Conclusion. 412 It has been 50 years since the... 2010
Crystal D. Masterson Wind-energy Ventures in Indian Country: Fashioning a Functional Paradigm 34 American Indian Law Review 317 (2009-2010) A wind turbine located in the pastoral setting of an Indian reservation is likely to engender two disparate reactions. Some may view the wind turbine as existing in harmony with nature on account of its attributes as a renewable energy resource serving to combat the effects of climate change. Others may find themselves revisiting their childhood,... 2010
Alex Hagen , J.R. LaPlante Winner, Best Appellate Brief in the 2009 Native American Law Student Association Moot Court Competition 34 American Indian Law Review 203 (2010) I. Does the Fort Howe State tuition waiver policy violate the Colorado state constitutional prohibition on racial preferences by requiring that a student prove the existence of ancestral ties to a historical Colorado tribe in order to be eligible for the waiver? II. Does the Fort Howe State tuition waiver policy violate the Equal Protection Clause... 2010
Allison Sirica A Great Gamble: Why Compromise Is the Best Bet to Resolve Florida's Indian Gaming Crisis 61 Florida Law Review 1201 (December, 2009) Indian gaming is a national multi-billion dollar enterprise and growing. Even in 2008, amidst an economic downturn, the revenues generated by the tribal gaming industry continued to show growth. In 2008 alone, Indian gaming generated $26.7 billion and accounted for a little more than a quarter of the gaming industry revenues in the United States.... 2009
Marilyn Phelan A History and Analysis of Laws Protecting Native American Cultures 45 Tulsa Law Review 45 (Fall 2009) I. Introduction. 45 II. A Trust Relationship between Native Americans and the Federal Government. 47 III. Federal Acts Impacting and/or Protecting Native American Cultures. 49 A. Antiquities Act of 1906. 49 B. National Historic Preservation Act of 1966. 50 C. American Indian Religious Freedom Act of 1978. 51 D. Archaeological Resources Preservation... 2009
Peter Zwick A Redeemable Loss: Lyng, Lower Courts and American Indian Free Exercise on Public Lands 60 Case Western Reserve Law Review 241 (Fall, 2009) Rising above Arizona's desert plains, the San Francisco Peaks reach higher than any other mountain range in the state. Named in honor of the medieval Italian Francis of Assisi a man venerated by the Catholic Church as the patron saint of animals and the environment the string of ancient volcanic summits contains impressive biological diversity... 2009
Gavin Clarkson Accredited Indians: Increasing the Flow of Private Equity into Indian Country as a Domestic Emerging Market 80 University of Colorado Law Review 285 (Spring 2009) Indian Country is America's domestic emerging market, and, as in other emerging markets, many successful businesses in Indian Country are starving for expansion capital. The U.S. Treasury estimates that the private-equity deficit in Indian Country is $44 billion. While the handful of wealthier tribes might be logical investors in private-equity... 2009
Delores Subia BigFoot, Janie Braden Adapting Evidence-based Treatments for Use with American Indian and Native Alaskan Children and Youth 28 No.5 Child Law Practice 76 (July, 2009) It is impossible to capture or explain the nature and extent of assaults experienced by American Indians and Alaskan Native (AI/AN) families. AI/AN communities experience a disproportionate number of events that put them at risk for trauma reactions. Often, these contemporary disruptions have roots in the historical past. According to the National... 2009
Madhav Khosla Addressing Judicial Activism in the Indian Supreme Court: Towards an Evolved Debate 32 Hastings International and Comparative Law Review 55 (Winter 2009) In recent years, the Indian Supreme Court has invited significant attention for the important position it has come to occupy within the nation's politics. Commentary on the working of the Court has been varied, with some scholars voicing strong opposition to the judiciary's rise, while others highlighting its role in the achievement of social... 2009
Dean John L. Carroll Alabama Native Becomes Chief Judge of Eleventh Circuit Court of Appeals 70 Alabama Lawyer 296 (July, 2009) On June 1, 2009, Judge Joel Dubina was sworn in as the seventh Chief Judge of the United States Court of Appeals for the Eleventh Circuit. He becomes the second Alabamian to hold this important position. Judge John Godbold was the first (see article on page 273 of this issue). Judge Dubina's elevation is yet another milestone in a long and... 2009
Ryan M. Seidemann Altered Meanings: the Department of the Interior's Rewriting of the Native American Graves Protection and Repatriation Act to Regulate Culturally Unidentifiable Human Remains 28 Temple Journal of Science, Technology & Environmental Law L. 1 (Spring 2009) Congress's purposes would not be served by requiring the transfer to modern American Indians of human remains that bear no relationship to them. I. Introduction. 3 II. NAGPRA's Function and Purpose. 4 A. How Does NAGPRA Work?. 4 1. Curated Remains. 5 2. Remains Found on Federal or Tribal Lands. 6 B. What are Culturally Unidentifiable Human... 2009
Rob Capriccioso American Indian Children Faring Poorly in Foster Care 28 No.8 Child Law Practice 125 (October, 2009) Of the approximately 500,000 American youth in foster care, Native American kids are faring among the worst, according to youth advocacy and policy experts. New analysis indicates that American Indian, Hispanic and African-American children all fare more poorly than white children in foster care--with Native youth being about three times more... 2009
Richard B. Collins American Indian Law Deskbook, 4th Ed. By the Conference of Western Attorneys General 818 Pp.; $85 University Press of Colorado, 2008 5589 Arapahoe Ave., Ste. 206c, Boulder, Co 80303 (800) 627-7377; 38-NOV Colorado Lawyer 101 (November, 2009) The American Indian Law Deskbook (Deskbook) was first published in 1993 to address its authors' claim of the absence of a comprehensive and objective treatise on Indian law. In making this claim, the Conference of Western Attorneys General (CWAG) implied that Felix S. Cohen's Handbook of Federal Indian Law (Handbook) (1982), and perhaps its... 2009
Robert J. Miller , Jacinta Ruru An Indigenous Lens into Comparative Law: the Doctrine of Discovery in the United States and New Zealand 111 West Virginia Law Review 849 (Spring, 2009) I. The Doctrine of Discovery. 852 A. England and Discovery. 854 B. The Elements of Discovery. 856 II. The Doctrine of Discovery in United States Law. 858 A. The Colonial Law of Discovery. 858 B. The State Law of Discovery. 861 C. United States Law and Discovery to 1823. 864 D. Discovery and Manifest Destiny. 871 III. The Doctrine of Discovery in... 2009
Carmel Sileo Arizona Court Says Indian Tribe Can Sue Researchers 45-FEB Trial 66 (February, 2009) A lawsuit by the Havasupai Indian tribe claiming that university researchers misused blood samples they took from members of the tribe during a study may proceed, according to a ruling by the Arizona Court of Appeals. In overturning a lower court ruling, the court, in an opinion by Judge Diane Johnsen, found that the injury that naturally flows... 2009
Karine Vanthuyne , University of Ottawa Becoming Maya? The Politics and Pragmatics of "Being Indigenous" in Postgenocide Guatemala 32 PoLAR: Political and Legal Anthropology Review 195 (November, 2009) This paper contrasts the way Mayan identity is conceptualized by NGOs and intellectuals in Guatemala with the everyday practices and material conditions influencing perceptions of identity in the rural town of Guaisná. The truth of past genocide and the experience of ongoing harsh socioeconomic inequality take on different meanings from these... 2009
Matthew Murphy Betting the Rancheria: Environmental Protections as Bargaining Chips under the Indian Gaming Regulatory Act 36 Boston College Environmental Affairs Law Review 171 (2009) In 2005, the State of California and the Big Lagoon Rancheria American Indian Tribe reached an agreement whereby the tribe agreed to forego development plans for a casino on environmentally sensitive lands in exchange for the right to build a casino in Barstow, California. In January 2008, the Department of the Interior denied the... 2009
W.S. Miller, Chad LeBlanc, University of Wisconsin-Parkside, University of North Texas Bingo?: an Overview of the Potential Legal Issues Arising from the Use of Indian Gaming Revenues to Fund Professional Sports Facilities 19 Journal of Legal Aspects of Sport 121 (Summer 2009) The cost for new North American professional sports facilities continues to skyrocket. New arenas built to house National Basketball Association (NBA) or National Hockey League (NHL) teams now routinely exceed $300 million in price. New Major League Baseball (MLB) stadiums typically cost between $450 million to $700 million. For example, Nationals... 2009
John R. Hein Born in the U.s.a., but Not Natural Born: How Congressional Territorial Policy Bars Native-born Puerto Ricans from the Presidency 11 University of Pennsylvania Journal of Constitutional Law 423 (January, 2009) No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.... 2009
Amanda M.K. Pacheco Broken Traditions: Overcoming the Jurisdictional Maze to Protect Native American Women from Sexual Violence 11 Journal of Law & Social Challenges Challenges 1 (Spring, 2009) The rape of Native American women has been likened to the destruction of indigenous culture because both are seen as attacks on the human soul. Both, it is claimed, are a kind of spiritual death. This sentiment is explained by Andrea Smith, a Native American anti-violence rape counselor and activist, who wrote that every Native [rape] survivor... 2009
Markham C. Erickson Carcieri V. Salazar: the Supreme Court's Definition of "Now" Creates Uncertainty for Indian Tribes 56-JUL Federal Lawyer 20 (July, 2009) The Indian Reorganization Act (IRA), which was enacted in 1934, authorizes the secretary of the interior to acquire land and hold it in trust for the purpose of providing land to Indians and defines Indian to include all persons of Indian descent who are members of any Indian tribe now under Federal jurisdiction. 25 U.S.C. § 479. On Feb. 24,... 2009
Rebecca Tsosie Climate Change, Sustainability and Globalization: Charting the Future of Indigenous Environmental Self-determination 4 Environmental & Energy Law & Policy Journal 188 (Fall 2009) I. Introduction. 189 II. The Politics of Climate Change within International and Domestic Governance Structures. 195 A. The International Regime. 196 B. The Domestic Arena. 199 C. Summary and Recommendations for Action. 202 1. International Human Rights Law. 202 2. Domestic Law. 204 III. The Tribal Arena: Energy Development and Native Nations. 208... 2009
Juanita Sales Lee Coming Home to Indian Country: More Firsts in Native Leadership 56-APR Federal Lawyer Law. 3 (March/April, 2009) The Federal Bar Association is continuing its tradition of employing the talents of all Americans as national leaders. Next September, when Lawrence Baca becomes president of the association, he will be our first Native American president and the first of any national nonminority bar. Born in Montrose, Colo., Baca grew up in El Cajon, Calif. He... 2009
Patrick A. Byorth Conflict to Compact: Federal Reserved Water Rights, Instream Flows, and Native Fish Conservation on National Forests in Montana 30 Public Land & Resources Law Review 35 (2009) Introduction. 35 I. The Winters Doctrine and Federal Reserved Water Rights. 37 II. Federal Reserved Water Rights and the U.S. Forest Service. 40 A. USFS Federally Reserved Water Rights in Federal Court. 40 B. Western State Resistance to Federal Reserved Rights. 43 III. The Montana Compact. 46 IV. A Case for Flushing Flows. 50 A. Climate Change and... 2009
Afra Afsharipour Corporate Governance Convergence: Lessons from the Indian Experience 29 Northwestern Journal of International Law and Business 335 (Spring 2009) Over the past two decades, corporate governance reforms have emerged as a central focus of corporate law in countries across the development spectrum. Various legal scholars studying these reform efforts have engaged in a vigorous debate about whether globalization will lead to convergence of corporate governance laws toward one model of... 2009
Alex Tallchief Skibine Culture Talk or Culture War in Federal Indian Law? 45 Tulsa Law Review 89 (Fall 2009) When it comes to conflicts between Native American culture and the cultural norms of the dominant society, is federal law more inclined towards culture talk, meaning engaging Indian tribes in a dialogue aiming at finding common grounds, or is it more engaged in culture war ? The point of this essay is to evaluate how the law of the dominant... 2009
David Bogen , Leslie F. Goldstein Culture, Religion, and Indigenous People 69 Maryland Law Review 48 (2009) The Constitution treats culture, religion, and government as separate concepts. Different clauses of the First Amendment protect culture and religion from government. For several decades, the Supreme Court of the United States interpreted the First Amendment as offering religion greater protection against interference than was offered to culture,... 2009
Sharmila Rudrappa Cyber-coolies and Techno-braceros: Race and Commodification of Indian Information Technology Guest Workers in the United States 44 University of San Francisco Law Review 353 (Fall 2009) Coolie is a word that . . . has no established etymology: some place it from the Tamil kuli (hire), others find it in use in sixteenth-century Portugal as Koli, after the name of a Gujarati community, still others notice that it sounds like the Chinese ku-li (bitter labor) or like the Fijian kuli meaning dog. One way or another, to be called... 2009
Kristen Cates, of the Great Falls Tribune Denise Juneau: a Long Road from Browning 34-APR Montana Lawyer 10 (April, 2009) It's a long road from Browning's Last Star Housing Project to the office of the superintendent of Montana's public schools in Helena. Along that road, Denise Juneau carried many titles: daughter, student, teacher, lawyer and basketball player. On Jan. 5 she was sworn in as the first Native American woman elected to a statewide executive office -- a... 2009
Shira Kieval Discerning Discrimination in State Treatment of American Indians Going Beyond Reservation Boundaries 109 Columbia Law Review 94 (January, 2009) Generally, federal Indian law cases focus on jurisdiction inside of Indian Country. Occasionally, however, challenges arise about the application of state law to American Indians outside of Indian Country. In 1973, and again in 2005, the Supreme Court announced that [a]bsent express federal law to the contrary, Indians going beyond reservation... 2009
Meghan Theresa McCauley Empowering Change: Building the Case for International Indigenous Land Rights in the United States 41 Arizona State Law Journal 1167 (Winter 2009) International law is part of [United States] law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as question of right depending upon it are duly presented for their determination. Old wounds of marginalization and exploitation continue for Indigenous Peoples (Indigenous Peoples), such as... 2009
Kimberly L. Alderman Ethical Issues in Cultural Property Law Pertaining to Indigenous Peoples 45 Idaho Law Review 515 (2009) C1-2TABLE OF CONTENTS I. INTRODUCTION. 516 II. WHY DEFINE THE ETHICAL ISSUES?. 517 A. The 5Ps Framework for Ethical Decision-Making Starts with Identifying the Ethical Problem. 517 B. What Are the Surrounding Facts?. 519 1. The Crises in the Cultural Property Trade Persist. 519 2. The Cultural Property Debates are Divisive and Stagnant. 521 3. The... 2009
Christopher W. Behan Everybody Talks: Evaluating the Admissibility of Coercively Obtained Evidence in Trials by Military Commission 48 Washburn Law Journal 563 (Spring 2009) We have ways of making men talk. Modern coercive interrogation techniques are devastatingly effective. Skilled interrogators can break even the most hardened subject by engaging in a concerted attack on his psyche. Notorious torture machines such as the rack or the iron maiden have been replaced by an ingenious system that relies on psychological... 2009
Duane H. King, Ph.D. Exhibiting Culture: American Indians and Museums 45 Tulsa Law Review 25 (Fall 2009) As long as museums have been in this country, American Indians have been represented in them. How Native American subjects have been treated by museums over the years has changed considerably. Much of the change I have witnessed firsthand. I entered the museum profession over 40 years ago. My first museum job, as a teenager, was scrubbing potsherds... 2009
Matthew L.M. Fletcher Factbound and Splitless: the Certiorari Process as Barrier to Justice for Indian Tribes 51 Arizona Law Review 933 (Winter 2009) The Supreme Court's certiorari process does more than help the Court parse through thousands of uncertworthy claims--the Court's process creates an affirmative barrier to justice for parties like Indian tribes and individual Indians. The Court has long maintained that the certiorari process is a neutral and objective means of eliminating patently... 2009
Merritt Schnipper Federal Indian Law--ambiguous Abrogation: the First Circuit Strips the Narragansett Indian Tribe of its Sovereign Immunity 31 Western New England Law Review 243 (2009) Chief Sachem Matthew Thomas got up and put on a shirt and tie. The Narragansett tribe leader expected to end the day in federal court, where he would confront the Rhode Island officials who were attempting to shut down the tribe's tax-free smoke shop. But when Tribal Councilman Hiawatha Brown called at one in the afternoon to say that a convoy of... 2009
Kevin K. Washburn Felix Cohen, Anti-semitism and American Indian Law 33 American Indian Law Review 583 (2008-2009) Architect of Justice: Felix S. Cohen and the Founding of American Legal Pluralism. By Dalia Tsuk Mitchell. Ithaca and London: Cornell Univ. Press. 2007. Pp. xi, 368. On the morning of Wednesday, November 1, 1939, a bright young government lawyer who had been detailed to the United States Department of Justice was summoned to his supervisor's... 2009
Carole Goldberg Finding the Way to Indian Country: Justice Ruth Bader Ginsburg's Decisions in Indian Law Cases 70 Ohio State Law Journal 1003 (2009) Two tax cases notably mark the distance, in Indian law terms, between Justice Ruth Bader Ginsburg's early and later years on the United States Supreme Court. In the first case, decided in her second term on the Court, Justice Ginsburg wrote for a majority, rejecting tribal members' claim of exemption from a state income tax. It was her first Indian... 2009
Larry Cata Backer From Hatuey to Che: Indigenous Cuba Without Indians and the U.n. Declaration on the Rights of Indigenous Peoples 33 American Indian Law Review 201 (2008-2009) Indigenous peoples have been quite useful to political elites in Latin America almost since the time of the conquests by Spanish and Portuguese adventurers in the fifteenth and sixteenth centuries. In the nineteenth and early twentieth centuries, indigenous people supplied the foundations for a trope, both literary and political, essential for the... 2009
Brooke Delores Swier Gaming Goldmines Grow Green: Limited Gaming, Good Faith Negotiations, and the Economic Impact of the Indian Gaming Regulatory Act in South Dakota 54 South Dakota Law Review 493 (2009) During the late 1980s, South Dakota gradually began to legalize various types of gaming, most notably casino-style gaming in Deadwood. In 1988, Congress enacted the Indian Gaming Regulatory Act (IGRA) which provided Indian tribes with the ability to conduct gaming operations on tribal land if that state offered gaming. At the same time the IGRA... 2009
Travis Thompson Getting over the Hump: Establishing a Right to Environmental Protection for Indigenous Peoples in the Inter-american Human Rights System 19 Journal of Transnational Law & Policy 179 (Fall, 2009) Climate change is threatening the traditional way of life for indigenous peoples and the Inter-American Human Rights System declines to combat this growing problem by refusing to acknowledge a right to environmental protection for indigenous peoples. The Inter-American Human Rights System has thus effectively cut off the possibility of remedying... 2009
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