AuthorTitleCitationSummaryYear
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
Áquila Mazzinghy Alvarenga Who Cares about the Rights of Indigenous Children? Infanticide in Brazilian Indian Tribes 22 Hastings Women's Law Journal 17 (Winter 2011) International law entitles indigenous peoples to a full range of human rights. Nevertheless, in many parts of the world, [they] suffer from a history of discrimination and exclusion that has left them on the margins of the larger societies in which they exist. For this reason, they face great difficulties in maintaining and developing their own... 2011
Bethany R. Berger Williams V. Lee and the Debate over Indian Equality 109 Michigan Law Review 1463 (June, 2011) Williams v. Lee (1959) created a bridge between century-old affirmations of the immunity of Indian territories from state jurisdiction and the tribal self-determination policy of the twentieth century. It has been called the first case in the modern era of federal Indian law. Although no one has written a history of the case, it is generally... 2011
Robert F. Castro Xenomorph!! 46 Harvard Civil Rights-Civil Liberties Law Review Rev. 1 (2011) The national debate over illegal immigration has been dramatically altered since 9/11. In his book The Latino Threat, Leo R. Chavez argues that Latina/o immigrants--including those U.S. populations that physically resemble them-- have been socially constructed as grave risks to the United States. Arizona Senate Bill 1070 (hereinafter S.B. 1070)... 2011
Vickie Enis Yours, Mine, Ours? Renovating the Antiquated Apartheid in the Law of Property Division in Native American Divorce 35 American Indian Law Review 661 (2010-2011) In an ideal world, one marries for love. In reality, however, marriage is often inspired by other motivations. The attractive young woman marrying the wealthy, established, older man is an image with which we are all too familiar. But an image not typically evoked by the mention of the word gold-digger is a non-Indian marrying an Indian to gain... 2011
Matthew L.M. Fletcher 2010 Dillon Lecture: Rebooting Indian Law in the Supreme Court 55 South Dakota Law Review 510 (2010) Aanii. It is an honor to deliver the 2010 lecture in honor of South Dakota Supreme Court Associate Justice Charles Hall Dillon. Justice Dillon, I was pleased to discover, delivered an important dissent in an American Indian law case in 1924, Dakota Life Insurance Co. v. Morgan. The majority had reversed a trial court decision affirming a life... 2010
Lawrence R. Baca 35 Years of the Fba Indian Law Conference 57-APR Federal Lawyer Law. 3 (March/April, 2010) In April 1976, the Federal Bar Association held its first conference on Indian law in Phoenix, Ariz. This year the Indian Law Section is celebrating the 35th anniversary of the conference. The program planners have compiled a fairly complete list of the conference chairs and topics for all the past programs, which is found in this issue, but it is... 2010
YANG, Chih-Chieh A Comparative Study of the Models Employed to Protect Indigenous Traditional Cultural Expressions 11 Asian-Pacific Law and Policy Journal 49 (2010) I. Introduction. 50 II. Models for Protecting Traditional Cultural Expressions. 51 A. The Public Domain Model. 52 B. The Customary Law Model. 53 1. Customary Protocols Regarding Traditional Design, Music and Dance in North America. 53 2. Customary Law Regarding Traditional Symbols and Art in Australia. 54 3. 54 C. The Authentication Model.... 2010
Angelique EagleWoman , Wambdi A. WasteWin A Constitutional Crisis When the U.s. Supreme Court Acts in a Legislative Manner? An Essay Offering a Perspective on Judicial Activism in Federal Indian Law and Federal Civil Procedure Pleading Standards 114 Penn State Law Review Penn Statim 41 (7/9/2010) The United States Supreme Court is one of the three branches of federal government in the U.S. governmental system of checks and balances. The primary purpose of the Court is to resolve live controversies as final arbiter on the interpretation of the U.S. Constitution and the federal legislation implementing that foundational document. For scholars... 2010
Brian L. Lewis A Day Late and a Dollar Short: Section 2719 of the Indian Gaming Regulatory Act, the Interpretation of its Exceptions and the Part 292 Regulations 12 Thomas M. Cooley Journal of Practical and Clinical Law 147 (Hilary Term 2010) Congress enacted the Indian Gaming Regulatory Act (IGRA) in 1988. The IGRA does not affect the Secretary of the Interior's (Secretary) authority to take land into trust for tribes. Section 2719 of the IGRA is a land use limitation that prohibits tribes from conducting gaming on lands they didn't possess in 1988. However, § 2719 of the IGRA... 2010
Jennifer Lynn Zweig A Globally Sustainable Right to Land: Utilizing Real Property to Protect the Traditional Knowledge of Indigenous Peoples and Local Communities 38 Georgia Journal of International and Comparative Law 769 (2010) Treat the earth well. It was not given to you by your parents, it was loaned to you by your children. -Indian Proverb Humans are interconnected with each other and the environment. Like a chain, when one link is lost the individual links can no longer function as a collective. In this way, the world may be considered the collective, unable to... 2010
David Urteago A Mighty Pulverizing Engine? The American Indian Probate Reform Act and the Struggle for Group Rights 2 Estate Planning & Community Property Law Journal 463 (Spring, 2010) [T]he time has arrived when we should definitely make up our minds to recognize the Indian as an individual and not as a member of a tribe. The General Allotment Act is a mighty pulverizing engine to break up the tribal mass [acting] directly upon the family and the individual . . . . -Theodore Roosevelt, U.S. President, First Annual Message (Dec.... 2010
Uilisone Falemanu Tua A Native's Call for Justice: the Call for the Establishment of a Federal District Court in American Samoa 11 Asian-Pacific Law and Policy Journal 246 (2010) I. Introduction. 247 II. Congress Created Federal District Courts Pursuant to Article III of the U.S. Constitution. 252 A. Congress Has Plenary Power over the Territories under Article IV of the U.S. Constitution and Can Create Territorial Courts under Such Authority. 253 B. Territorial Federal District Courts Exist in Every Territory Except... 2010
Kyle Persaud A Permit to Practice Religion for Some but Not for Others: How the Federal Government Violates Religious Freedom When it Grants Eagle Feathers Only to Indian Tribe Members 36 Ohio Northern University Law Review 115 (2010) On June 27, 2008, the Ninth Circuit Court of Appeals issued a ruling on a controversy that has divided federal appellate courts for the past seven years: whether individuals, who are not members of Indian tribes, may possess eagle feathers for use in religious observances. Mario Vasquez-Ramos and Luis Rodriguez-Martinez were leaders in their Native... 2010
Cassandra Barnum A Single Penny, an Inch of Land, or an Ounce of Sovereignty: the Problem of Tribal Sovereignty and Water Quality Regulation under the Maine Indian Claims Settlement Act 37 Ecology Law Quarterly 1159 (2010) This Note has three goals: to describe the Environmental Protection Agency's 2003 delegation of National Pollutant Discharge Elimination System permitting authority to the State of Maine under the Clean Water Act, to critique the Agency's decision based on principles of federal Indian law, and to propose solutions to the resultant problems faced by... 2010
Samantha A. Moppett ACKNOWLEDGING AMERICA'S FIRST SOVEREIGN: INCORPORATING TRIBAL JUSTICE SYSTEMS INTO THE LEGAL RESEARCH AND WRITING CURRICULUM 35 Oklahoma City University Law Review 267 (Summer 2010) Marie Setian (Marie) drove to Foxwoods Resort Casino in Ledyard, Connecticut, with her husband and another couple for a day of gambling, dining, and entertainment. After gambling for a little while, the couples went to the Festival Buffet. At the buffet's seafood station, Marie placed some shrimp on her plate. As she walked to the international... 2010
Taylor Reinhard Advancing Tribal Law Through "Treatment as a State" under the Obama Administration: American Indians May Also Find Help from Their Legal Relative, Louisiana--no Blood Quantum Necessary 23 Tulane Environmental Law Journal 537 (Summer 2010) I. Introduction. 538 II. Background. 540 A. Tribal Sovereignty and the Federal Government's Fiduciary Duty as Trustee. 540 B. Treatment in the Same Manner as a State Really Means Treating Tribes as States. 541 C. Courts Carefully Lengthen the Arm of Tribal Jurisdiction under the TAS Doctrine. 542 III. American Indian Legal Systems: New Growth on... 2010
Kevin K. Washburn Agency Conflict and Culture: Federal Implementation of the Indian Gaming Regulatory Act by the National Indian Gaming Commission, the Bureau of Indian Affairs, and the Department of Justice 42 Arizona State Law Journal 303 (Spring 2010) The so-called Founding Fathers, the men who came together to draft the United States Constitution, believed in divided government and the dispersion of governmental power among competing institutions. They believed that a system of separation of powers and checks and balances could prevent the aggregation of power in a single decision-maker who... 2010
Ezra Rosser Ahistorical Indians and Reservation Resources 40 Environmental Law 437 (Spring 2010) This Article is an in-depth exploration of the impacts of an Indian tribe deciding to pursue environmentally destructive forms of economic development. The Article makes two principal contributions. First, it establishes the Navajo Nation's decision-making role. Prior mineral resource forms of development may have been formally approved by the... 2010
Amber Crossman Cheng All in the Same Boat? Indigenous Property Rights in Underwater Cultural Heritage 32 Houston Journal of International Law 695 (Summer 2010) I. INTRODUCTION. 696 II. ORIGINS OF THE BLACK SWAN TREASURE. 698 A. History of the Black Swan. 698 B. Claims to the Black Swan Treasure. 699 C. Indigenous Peoples' Relationship to Mining in Peru. 702 III. EXISTING TREATMENT OF UNDERWATER CULTURAL HERITAGE IN INTERNATIONAL LAW. 707 A. Maintaining the Status Quo: The U.N. Convention on the Law of the... 2010
Elizabeth Ann Kronk Alternative Energy Development in Indian Country: Lighting the Way for the Seventh Generation 46 Idaho Law Review 449 (2010) Indigenous Peoples are like the miner's canary, when their cultures and languages disappear this reflects the profound sickness in the ecology. C1-2TABLE OF CONTENTS I. THE STATUS QUO. 450 II. INCREASING INTEREST IN ALTERNATIVE ENERGY DEVELOPMENT IN INDIAN COUNTRY. 455 A. Native Communities Are Uniquely Impacted by Climate Change, Creating... 2010
Theodore Macdonald Amazonian Indigenous Views on the State: a Place for Corporate Social Responsibility? 33 Suffolk Transnational Law Review 439 (Symposium 2010) Shortly after dinner on November 16, 1532, Father Vicente de Valverde, chaplain to Francisco de Pizzaro, explained to their Inca host Atahualpa that he must pay tribute in gold and silver to God, through King Charles IV of Spain. The Inca responded to this circuitous logic with a series of well-reasoned questions. Instead of answering, the Spanish... 2010
Robert J. Miller American Indian and Tribal Intellectual Property Rights 13 Tulane Journal of Technology and Intellectual Property 179 (Fall 2010) I. Introduction. 179 II. Indian Arts and Crafts Act. 180 III. Protection of Tribal and Individual Names. 181 IV. U.S. Patent & Trademark Office. 182 V. Future Issues. 183 2010
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