AuthorTitleCitationSummaryYear
Dr. Yousef T. Jabareen Redefining Minority Rights: Successes and Shortcomings of the U.n. Declaration on the Rights of Indigenous Peoples 18 U.C. Davis Journal of International Law and Policy 119 (Fall 2011) I. Introduction. 119 II. Defining Minorities and Indigenous Peoples. 121 A. Defining Minorities. 122 B. Defining Indigenous Peoples. 125 C. Why Indigenous Peoples Should Be Distinguished From Minorities. 130 III. Earlier Expressions of Minority and Indigenous Rights in International Law. 131 A. Contributions of the 2007 Declaration on the Rights of... 2011
Cortelyou C. Kenney Reframing Indigenous Cultural Artifacts Disputes: an Intellectual Property-based Approach 28 Cardozo Arts and Entertainment Law Journal 501 (2011) Please note that by the time this issue went to print, Yale University agreed to return the collections known as the lost treasure of Machu Picchu to Peru. This article does not reflect this change of events. Introduction. 503 I. The Battleground of Representation. 508 A. The Rise of The Museum in an Age of Empire Building. 508 B. Museums as... 2011
Jimmy Pak Re-imagining the Wheel: Seeking a Feasible International Regime to Protect Indigenous Cultural Expressions Through Trademark Law 24 Pacific McGeorge Global Business & Development Law Journal 381 (2011) I. Introduction. 382 II. Background. 384 A. Indigenous Culture Conflicts. 385 III. Current Efforts to Protect Indigenous Trademarks. 386 A. Maori Peoples of New Zealand. 386 B. The Panama Approach. 389 C. The Western Approach. 391 IV. International Intellectual Property Approaches. 394 A. Paris, Madrid, and the Trademark Law Treaty. 394 B. Other... 2011
Kimberly Self Self-interested: Protecting the Cultural and Religious Privacy of Native Americans Through the Promotion of Property Rights in Biological Materials 35 American Indian Law Review 729 (2010-2011) According to its history, the Havasupai tribe has lived in the Grand Canyon since the beginning of human existence. The Havasupai believe that the Grand Canyon is the birthplace of the human race, and that the tribe is charged with the sacred duty of protecting the canyon. Recently, members of the Havasupai tribe donated blood samples for diabetes... 2011
Prabha Kotiswaran, University of London Stages of Capital: Law, Culture and Market Governance in Late Colonial India. By Ritu Birla. Durham and London: Duke University Press, 2009. 360 Pp. $89.95 Cloth; $24.95 Paper. Global Business, Local Law: the Indian Legal System as a Communal Resource in 45 Law and Society Review 507 (June, 2011) Ritu Birla's path-breaking book Stages of Capital is a much-awaited legal history of Indian capitalism and the role of indigenous capitalists therein. It focuses in particular on the North Indian business community of the Marwaris in the period spanning 1870 through 1930. An ambitious undertaking in reach and scope, the book draws on rich archival... 2011
Heather Kendall-Miller State of Alaska V. Native Village of Tanana: Enhancing Tribal Power by Affirming Concurrent Tribal Jurisdiction to Initiate Icwa-defined Child Custody Proceedings, Both Inside and Outside of Indian Country 28 Alaska Law Review 217 (December, 2011) This Article provides an overview of the significant cases that have defined state-tribal relations in Alaska as related to Indian child proceedings and further discusses various policies that have been implemented over time. After outlining these cases and shifting policies, the Article examines the current state of the law in Alaska with a focus... 2011
Douglas D. Birk Stuck Inside of Minnesota Without Judicial Election Reform Again: a Contemporary Survey of the Political Movement to Preserve Judicial Impartiality from the Minnesota Judiciary's Point of View 32 Hamline Journal of Public Law and Policy 507 (Spring 2011) Essential to public confidence in the judiciary is the assurance that justice is not for sale and that legal disputes will be resolved by fair and impartial judicial officers. Maintaining public confidence in the judiciary is becoming increasingly problematic across the United States as money and special interests continue to play a greater role... 2011
Suzianne D. Painter-Thorne Tangled up in Knots: How Continued Federal Jurisdiction over Sexual Predators on Indian Reservations Hobbles Effective Law Enforcement to the Detriment of Indian Women 41 New Mexico Law Review 239 (Spring 2011) In February 2003, twenty-year-old Leslie Ironroad lapsed into a coma and died after being held captive in a bathroom, then beaten and repeatedly raped by a group of men on the Standing Rock Sioux Reservation in South Dakota. Desperate to stop the assault, Ironroad had taken diabetes pills she found in the bathroom's medicine cabinet, hoping that... 2011
Sarah W. Conkright The "Better Reading" of Section 17 of the Indian Reorganization Act: a Rejection of Automatic Waiver of Tribal Sovereign Immunity in Memphis Biofuels 60 Catholic University Law Review 1175 (Fall, 2011) Business more than any other occupation is a continual dealing with the future; it is a continual calculation, an instinctive exercise in foresight. Few contexts require as much foresight as dealings between tribal and nontribal businesses. Generally, tribal corporations resemble nontribal corporations with respect to their business... 2011
Stephanie Baez The "Right" Redd Framework: National Laws That Best Protect Indigenous Rights in a Global Redd Regime 80 Fordham Law Review 821 (November, 2011) This Note focuses on Reducing Emissions from Deforestation and Forest Degradation (REDD), an international framework that aims to curb carbon emissions by reducing deforestation. While international negotiators discuss the environmental benefits of REDD, which will likely be implemented in the Kyoto Protocol's post-2012 commitment period,... 2011
Emily Droll The Akaka Bill and Native Hawaiian Usufructuary Rights 3 Georgetown Journal of Law & Modern Critical Race Perspectives 39 (Spring, 2011) American Indians have historically been accorded a special status in American jurisprudence. Included in this special status is the right to continue subsistence land uses such as hunting, fishing, and gathering even after transferring sovereignty of Indian land to the United States Government. When the United States was originally expanding... 2011
Diane K. Lautt The American Indian Probate Reform Act: a Five-year Review 51 Washburn Law Journal 105 (Fall 2011) On October 27, 2004, President George W. Bush signed into law the American Indian Probate Reform Act (AIPRA), instituting a sweeping reform of the Indian federal probate process. Key among AIPRA's purposes was the goal of reducing fractionation of Indian trust landownership. The problem of trust land fractionation is best understood by an... 2011
Aaron F.W. Meek The Conflict Between State Tests of Tribal Entity Immunity and the Congressional Policy of Indian Self-determination 35 American Indian Law Review 141 (2010-2011) Supreme Court and congressional silence have presented state courts with the opportunity to fashion tests to determine the sovereign immunity status of tribal entities. State courts have crafted numerous and varied tests, ranging from Washington's bright-line rule to an eleven-factor test recently adopted by the Colorado judiciary. What these... 2011
Samantha Lawson The Conundrum of Climate Change Causation: Using Market Share Liability to Satisfy the Identification Requirement in Native Village of Kivalina V. Exxonmobil Co. 22 Fordham Environmental Law Review 433 (Spring 2011) Change is in the air. Over the past several decades numerous studies have indicated a general increase in global temperature. The U.S. National Aeronautics and Space Administration (NASA) reported that 2005 was the warmest year on record in more than a century. While researchers are unsure if 2010 will surpass 2005 as the warmest year in the past... 2011
Blake A. Watson The Doctrine of Discovery and the Elusive Definition of Indian Title 15 Lewis & Clark Law Review 995 (Winter, 2011) On April 15, 2011, the Lewis & Clark Law Review hosted its Spring Symposium, entitled The Future of International Law in Indigenous Affairs: The Doctrine of Discovery, the United Nations, and the Organization of American States. While the Symposium participants agree that the doctrine of discovery should be rejected, they disagree on the impact... 2011
Michael Lawrence The Effects of Human Rights Norms on Sovereignty: the Native American Context 20 Michigan State International Law Review 57 (2011) Introduction. 57 I. Radicals in Their Own Time. 57 II. Vine Deloria Jr. and Indian Sovereignty. 59 III. Indian Sovereignty and Human Rights. 62 IV. Community. 64 2011
Jeremy Sarkin and Amelia Cook The Human Rights of the San (Bushmen) of Botswana--the Clash of the Rights of Indigenous Communities and Their Access to Water with the Rights of the State to Environmental Conservation and Mineral Resource Exploitation 20 Journal of Transnational Law & Policy Pol'y 1 (2010-2011) Introduction. 1 I. Historical Relations and Land Use Patterns between the San and the Tswana. 6 II. The Central Kalahari Game Reserve Issue. 12 III. The Legal System in Botswana. 20 IV. The High Court Case: Sesana v. Attorney General. 23 V. Government Compliance with the Court's decision. 27 VI. The San's Options Moving Forward. 29 Conclusion. 31... 2011
Scott Brainard The Impact of Indonesian Agricultural Policies on Indigenous Populations, Natural Resources and the Economy: the Limits of Democratic Self-determination under Capitalist Regimes 43 University of Miami Inter-American Law Review 165 (Fall 2011) The title of this paper highlights a number of interconnected themes: how Indonesian agricultural policy has affected its indigenous populations, its natural environment, and the structure of its economy; the relationship between these effects; and, more generally, the structure of capitalist markets and democratic institutions. This set of topics... 2011
Blake A. Watson The Impact of the American Doctrine of Discovery on Native Land Rights in Australia, Canada, and New Zealand 34 Seattle University Law Review 507 (Winter, 2011) The landmark decision in the United States regarding Indian land rights is Johnson v. McIntosh, an 1823 decision authored by Chief Justice John Marshall. The Supreme Court in Johnson unequivocally rejected the most favorable view of indigenous land rights--that the native inhabitants own the land they occupy and are free to retain or sell their... 2011
Lamar Dowling The Indian Microfinance Institutions (Development and Regulation) Bill of 2011: Microfinance Beginnings and Crisis and How the Indian Government Is Trying to Protect its People 45 International Lawyer 1083 (Winter, 2011) The recent microfinance crisis in the southern Indian state of Andhra Pradesh caught the world's attention and caused many to wonder who was to blame. Sensationalized newspaper accounts of suicides among over-indebted clients of microfinance institutions (MFIs) brought to light the increasing debt stress across tens of thousands of clients,... 2011
Ryan Kananiokahome Poiekeala Kanaka'ole The Indivisible 'Ohana: Extending Native Hawaiian Gathering Rights to Non-hawaiian Family Members 12 Asian-Pacific Law and Policy Journal 145 (2011) Introduction. 146 I. The Hawaiian 'ohana System. 148 A. The General Concept of 'Ohana. 148 B. The Relevance of the Hawaiian 'Ohana from Pre-Western Contact Hawai'i to Present Day. 149 C. The Inclusive Nature of the Hawaiian 'Ohana as Illustrated through the Practice of Hnai. 154 D. The Role of the Non-Hawaiian in the Hawaiian 'Ohana. 156 II. The... 2011
Robert J. Miller , Lisa LeSage , Sebastián López Escarcena The International Law of Discovery, Indigenous Peoples, and Chile 89 Nebraska Law Review 819 (2011) I. Introduction. 820 II. The Doctrine of Discovery. 822 A. European and Church Formulation of the Doctrine. 826 B. Spanish and Portuguese Development of the Doctrine. 830 1. Spain takes Discovery to the New World. 835 2. The Philosophical Debates in the Spanish Empire. 838 C. Other European Countries and Discovery. 846 III. The Doctrine of... 2011
Evan Mascagni The Legal Process of Cultural Genocide: Chinese Destruction of Tibetan Culture V. U.s. Destruction of Native American Culture 14 University of the District of Columbia Law Review 241 (Spring 2011) In the incongruous atmosphere of the Wilshire Hotel in Los Angeles, an extraordinary encounter took place in 1979. During the Dalai Lama's first visit to North America, he met with three Hopi elders. The spiritual leaders agreed to speak in only their Native tongues. Through Hopi elder and interpreter Thomas Benyakya, delegation head Grandfather... 2011
Joseph Ezzo The Marlin Mine, Guatemala: Environmental and Indigenous Human Rights Concerns 2 Arizona Journal of Environmental Law & Policy Pol'y 1 (April, 2011) Montana Exploradora de Guatemala S.A., a wholly-owned subsidiary of Goldcorp, a Canadian mining company, began gold and silver mining operations in the western highlands of Guatemala in 2005. The municipalities of San Miguel Ixtahuacán and Sipacapa were primarily affected. The presence of the mine has directly impacted 18 communities of indigenous... 2011
Angelique EagleWoman , University of Idaho College of Law The Native Law Program at the University of Idaho: a Third Year of Success 54-AUG Advocate 22 (August, 2011) At the University of Idaho College of Law, the Native Law program has completed another successful year. In the second year of offering an academic specialization, the Native American Law (NAL) Emphasis, nine law graduates completed and received the designation on their transcripts in the 2010-2011 year. This was a substantial increase from the... 2011
Kaighn Smith Jr. The next Century of Federal Indian Law: a Moderator's Reflections 58-APR Federal Lawyer 29 (March/April, 2011) The Federal Bar Association's Annual Indian Law Conference is a place for big thinking. So 10 years into the new millennium, why not ask: How will federal Indian law look over the course of the next century? A better question might be: How should federal Indian law look in the next century? At this year's conference, a panel of prominent Indian... 2011
Michael L. Rustad , Diane D'Angelo The Path of Internet Law: an Annotated Guide to Legal Landmarks 2011 Duke Law & Technology Review 12 (11/30/2011) The evolution of the Internet has forever changed the legal landscape. The Internet is the world's largest marketplace, copy machine, and instrumentality for committing crimes, torts, and infringing intellectual property. Justice Holmes's classic essay on the path of the law drew upon six centuries of case reports and statutes. In less than... 2011
Addie C. Rolnick The Promise of Mancari: Indian Political Rights as Racial Remedy 86 New York University Law Review 958 (October, 2011) In 1974, the Supreme Court declared that an Indian employment preference was based on a political rather than racial classification. The Court's framing of Indianness as a political matter and its positioning of political and racial as opposing concepts has defined the trajectory of federal Indian law and influenced common sense ideas about... 2011
Tara Ward The Right to Free, Prior, and Informed Consent: Indigenous Peoples' Participation Rights Within International Law 10 Northwestern Journal of International Human Rights 54 (Fall, 2011) The right to free, prior, and informed consent (FPIC) in relation to development projects, resource extraction, and other investment projects within the territory of indigenous peoples is currently being debated within international law. On a basic level, the concept of FPIC is contained within its phrasing: it is the right of indigenous peoples to... 2011
Erick Rhoan THE RIGHTFUL POSITION: THE BP OIL SPILL AND GULF COAST TRIBES 20 San Joaquin Agricultural Law Review 173 (2010-2011) Only after the last tree has been cut down the last river has been poisoned the last fish caught, only then will you find that money cannot be eaten. - Cree Indian philosophy. On April 20th, 2010, an oil rig named Deepwater Horizon suffered a massive explosion, killing eleven people, injuring dozens more, and kicked off the worst environmental... 2011
Aaron H. Midler The Spirit of Nagpra: the Native American Graves Protection and Repatriation Act and the Regulation of Culturally Unidentifiable Remains 86 Chicago-Kent Law Review 1331 (2011) In 1996, the Fallon Paiute-Shoshone tribe (Fallon Paiute) sought the return of a nearly 10,000-year-old set of human remains known as the Spirit Cave Man from the Bureau of Land Management (BLM). The BLM is a federal agency that controlled the land upon which the remains were discovered in 1940. The tribe argued that the Spirit Cave Man was a... 2011
Matthew L.M. Fletcher The Tenth Justice Lost in Indian Country 58-APR Federal Lawyer 36 (March/April, 2011) We'd end up in Indian country. Out where nobody could even believe we were there. Places where you could get shot just for wearing corduroy. -- Tom Waits The Office of the Solicitor General (OSG) occupies a special place in the jurisprudence and practice of the U.S. Supreme Court. The solicitor general, sometimes referred to as the tenth justice,... 2011
Jered T. Davidson This Land Is Your Land, this Land Is My Land? Why the Cobell Settlement Will Not Resolve Indian Land Fractionation 35 American Indian Law Review 575 (2010-2011) Land ownership is generally regarded as the pinnacle of success and stability in regard to financial security. It has provided class structure, facilitated the development of countries, and furthered the transfer of wealth across generations. The first peoples to inhabit the United States, however, maintained a very different view of property.... 2011
Justin P. Grose Time to Bury the Tomahawk Chop: an Attempt to Reconcile the Differing Viewpoints of Native Americans and Sports Fans 35 American Indian Law Review 695 (2010-2011) A young Caucasian undergraduate dons a buckskin outfit and traditional headdress of the fake American Indian Chief Illinewek. He is the mascot for the University of Illinois at Urbana-Champaign. Chief Illinewek readies for his barefoot rush onto the field at Memorial Stadium in Champaign, Illinois to pump up the crowd for yet another home... 2011
Peter Erlinder Treaty-guaranteed Usufructuary Rights: Minnesota V. Mille Lacs Band of Chippewa Indians Ten Years on 41 Environmental Law Reporter News & Analysis 10921 (October, 2011) In Minnesota v. Mille Lacs Band of Chippewa Indians, the U.S. Supreme Court unanimously held that U.S. treaty negotiators severed the perpetual right to use land from formal title to the land in an 1837 (and 1854) Treaty. The Mille Lacs majority and dissent differed only as to whether treaty-guaranteed usufructuary property rights had been... 2011
Emily Tredeau TRIBAL CONTROL IN FEDERAL SENTENCING 99 California Law Review 1409 (October, 2011) On many Indian reservations throughout the country, the federal government is the only sovereign empowered to prosecute serious felonies. Consequently Native Americans are disproportionately exposed to lengthy federal sentences. Because the federal government controls these cases, tribal sovereigns lack the local control over criminal law and... 2011
Barbara Creel TRIBAL COURT CONVICTIONS AND THE FEDERAL SENTENCING GUIDELINES: RESPECT FOR TRIBAL COURTS AND TRIBAL PEOPLE IN FEDERAL SENTENCING 46 University of San Francisco Law Review 37 (Summer 2011) THIS ARTICLE CRITIQUES A PROPOSAL to include tribal court criminal convictions and sentences in the federal sentencing scheme. The proposal, as articulated by Kevin Washburn, calls for an amendment to the Federal Sentencing Guidelines to count tribal court convictions in calculating an Indian defendant's criminal history score to determine a... 2011
Kristin MacDougall TRIBAL RIGHTS IN KENYA AND ZIMBABWE: TO PROMOTE OR NOT TO PROMOTE, THAT IS THE QUESTION 27 Connecticut Journal of International Law 167 (Fall, 2011) Table of Contents Introduction 169 I. Background 170 A. Colonialism in Zimbabwe and Kenya 170 B. A Closer Look at Kenya: Constitutionalism, Legislative Acts and Litigation 171 C. A Closer Look at Zimbabwe: Constitutionalism, Legislative Acts and Litigation 178 II. Analysis 182 A. Constitutional Differences between Zimbabwe and Kenya 182 B.... 2011
Sunny Kishore Bilaney Two Codes to Speak a Common Language-harmonizing Indian Transfer Pricing and Customs Valuation Rules 22 Journal of International Taxation 45 (November, 2011) Although the transfer pricing Regulations and customs valuation rules have the same objectiveto determine an arm's-length price or fair valuethe motivations of the tax and customs authorities are inversely related. Whenever there is a transaction between associated enterprises (as described in the Indian transfer pricing regulations (TPR)) or... 2011
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
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