Nickolas M. Boecher Third Party Petitions as a Means of Protecting Voluntarily Isolated Indigenous Peoples 10 Sustainable Development Law & Policy 58 (Fall, 2009) There are more than one hundred isolated indigenous groups worldwide with more than half living in Peru and Brazil. Loggers, colonists, and oil companies are encroaching on the lands of these groups, which are at an additional risk of extinction from diseases to which they have no immunity. A procedural element of the Inter-American Commission on... 2009
Alex Ward Tips for Providing Services on American Indian Reservations: an Individual Approach Works Best 31 No.1 Bifocal 17 (September-October, 2009) This is, by no means, a complete treatise on working in Indian country. Much of the following knowledge comes from my personal experience working with individual tribal organizations. Because there are 562 tribes recognized in the United States, each experience will be different. American Indians, as a population, are often misunderstood by others.... 2009
Matthew Handler Tribal Law and Disorder: a Look at a System of Broken Justice in Indian Country and the Steps Needed to Fix it 75 Brooklyn Law Review 261 (Fall, 2009) On a typical spring night in 2004, Alex Apichito, a young construction worker, and some friends were walking home from a party when they ran into Alex's older cousin, Leonard. Even though the two had a sometimes turbulent relationship, Leonard invited the group back to his house for drinks. At some point later that night, Alex and Leonard began to... 2009
Matthew Handler TRIBAL LAW AND DISORDER: A LOOK AT A SYSTEM OF BROKEN JUSTICE IN INDIAN COUNTRY AND THE STEPS NEEDED TO FIX IT 75 Brooklyn Law Review 261 (Fall, 2009) On a typical spring night in 2004, Alex Apichito, a young construction worker, and some friends were walking home from a party when they ran into Alex's older cousin, Leonard. Even though the two had a sometimes turbulent relationship, Leonard invited the group back to his house for drinks. At some point later that night, Alex and Leonard began to... 2009
Richard Monette, University of Wisconsin Law School U.s. Law and Native American Rights in Action -- a Law Professor and Activist's View 32 PoLAR: Political and Legal Anthropology Review 312 (November, 2009) I am a law professor and Director of the Great Lakes Indian Law Center (GLILC) at the University of Wisconsin. I study and teach about laws that deal with America's First Nations -- the Indian tribes. The GLILC works with tribes and native organizations to improve their political and legal relations with the federal and state governments. I have... 2009
Michael Davidson United States V. Friday and the Future of Native American Religious Challenges to the Bald and Golden Eagle Protection Act 86 Denver University Law Review 1133 (2009) For the Northern Arapaho Indian tribe on the Wind River Reservation in Wyoming, the Sun Dance is the most sacred of religious ceremonies. Held annually after the first thunder of the spring, and lasting anywhere from four to eight days, the Sun Dance portrays the continuity between death and rebirth and the interdependence of all natural things.... 2009
Jeremiah A. Bryar What Goes Around, Comes Around: How Indian Tribes Can Profit in the Aftermath of Seminole Tribe and Florida Prepaid 13 Marquette Intellectual Property Law Review 229 (Winter 2009) Introduction. 230 I. Patent Law. 231 II. Experimental Use Exception. 232 III. State Sovereign Immunity. 235 IV. Tribal Sovereignty. 239 V. Tribal Sovereign Immunity. 245 VI. Discussion. 245 Conclusion. 248 2009
Matthew E. Terry WHAT'S FAIR IS FAIR: TRIBAL ASSERTIONS OF JURISDICTION OVER ARBITRATION DECISIONS 2009 Journal of Dispute Resolution 255 (2009) The rules governing the appropriateness and extent of the jurisdiction of the various Indian tribal courts that exist concurrently with the court systems of the states and the federal government are not very well-defined. As such, there exists little guidance for courts faced with mediation awards and these twin assertions of jurisdiction. A... 2009
Courtney J. A. DaCosta When "Turnabout" Is Not "Fair Play": Tribal Immunity under the Indian Gaming Regulatory Act 97 Georgetown Law Journal 515 (January, 2009) C1-2Table of Contents Introduction. 516 I. Overview of Tribal Immunity Doctrine and IGRA. 518 a. tribal immunity. 518 1. Historical Development of Tribal Immunity. 518 2. Limitations on Tribal Immunity. 520 b. igra. 521 II. The Scope Under IGRA of the Exceptions to Tribal Immunity. 523 a. abrogation by the (a)(ii) provision. 524 1. Abrogation of... 2009
Amelia Cook , Jeremy Sarkin Who Is Indigenous?: Indigenous Rights Globally, in Africa, and among the San in Botswana 18 Tulane Journal of International and Comparative Law 93 (Winter 2009) I. Introduction. 93 II. Indigenous Rights Internationally. 98 III. The Situation of Indigenous Peoples Internationally. 101 IV. The Quandary of Definition. 105 V. Indigeneity in Africa. 109 VI. Definitional Complexities. 111 VII. Indigeneity and Culture. 113 VIII. Indigeneity as a Tool; Who Defines It?. 116 IX. Indigeneity in Botswana. 117 X. The... 2009
andré douglas pond cummings , Seth E. Harper Wide Right: Why the Ncaa's Policy on the American Indian Mascot Issue Misses the Mark 9 University of Maryland Law Journal of Race, Religion, Gender and Class 135 (Spring 2009) Of the many civil rights and social justice issues that continue to cloud United States race relations, one persists in relentlessly dividing parties: the use of American Indian mascots and imagery by collegiate and professional athletic teams. Scholars and academics weigh in annually on this divisive issue, while certain university administration... 2009
Patrick M. Garry , Candice J. Spurlin , Derek A. Nelsen Wind Energy in Indian Country: a Study of the Challenges and Opportunities Facing South Dakota Tribes 54 South Dakota Law Review 448 (2009) The development of wind power in Indian country presents a unique opportunity for Indian tribes to advance economic and social interests while adhering to traditional values and mores. Challenges exist, however, for turning wind-rich lands into viable wind energy production sites. This comment focuses on these challenges and highlights the legal... 2009
Moani Crowell , Gregory K. Schlais Winner, Best Appellate Brief in the 2008 Native American Law Student Association Moot Court Competition 33 American Indian Law Review 311 (2008-2009) I. Is the Appellee, a non-member and non-Indian of the Sandy Spring Band of Pomona Indians, subject to tribal jurisdiction? II. Does the Sandy Spring Band of Pomona Indians have authority, express or apparent, over the Appellee, pursuant to zoning laws and regulations established by the tribe? The district court's decision to grant permanent... 2009
Amelia V. Katanski Writing the Living Law: American Indian Literature as Legal Narrative 33 American Indian Law Review 53 (2008-2009) Crow Creek Sioux novelist and critic Elizabeth Cook-Lynn has argued that the most important question literary critics can ask of native literature is: What role does American Indian literature play in today's struggles to defend and clarify tribal sovereignty? Likewise, the important recent study American Indian Literary Nationalism begins with the... 2009
Uma Narayan 26th Annual Course in International Law Librarianship: Global Challenges & the Indian Legal 36 International Journal of Legal Information xv (Summer, 2008) What follows is a brief overview of the 26 Annual Course of the International Association of Law Libraries, the first of its kind to be held in India. The academic sessions of the conference were held between December 2, 2007 and December 4, 2007. The first lecture was delivered by the Honorable Mr. Justice B.N. Srikrishna, Former Judge, Supreme... 2008
Casey Douma 40th Anniversary of the Indian Civil Rights Act: Finding a Way Back to Indigenous Justice 55-APR Federal Lawyer 34 (March/April, 2008) Fear, superstition, and myth can lead to a path of disenlightenment and stunt the growth of a society that chooses not to accept change. Today, there are still many myths, superstitions, and fears of Native Americans and their strange ways. Can Native people, who, according to some, have such mysterious customs, be trusted to administer justice... 2008
Courtney Eagan-Smith A House with No Walls: the Federal Government's Role in Indian Housing 44 Tulsa Law Review 447 (Winter 2008) Imagine what it would be like if you lived in a house with no walls. Imagine that you live in a one room house with as many as 17 other people. Your house was built in the 1960s and has long outlived its purpose, but that is all there is. Not only has it outlived its usefulness, at one point in time it was abandoned due to deterioration, but you... 2008
Sean M. Hanlon A Non-indian Entity Is Polluting Indian Waters: "Water" Your Rights to the Waters, and "Water" Ya Gonna Do about It? 69 Montana Law Review 173 (Winter 2008) The permanent loss of [a natural resource] irreparably [tears] at the balance of the world. We refer to the earth and sky as Mother Earth and Father Sky. These are not catchy titles; they represent our understanding of our place. The earth and sky are our relatives. Nature communicates with us through the wind and the water and the whispering... 2008
Professor Barbara Ann Atwood Achieving Permanency for American Indian and Alaska Native Children: Lessons from Tribal Traditions 37 Capital University Law Review 239 (Winter 2008) One of the many challenges facing the American child welfare system is the need for practices that are responsive to the unique cultural needs of the children who are placed in foster care. The goal of achieving permanent, stable placements for children in the child welfare system is an over-arching objective, but permanency is a chameleon term... 2008
Professor Barbara Ann Atwood ACHIEVING PERMANENCY FOR AMERICAN INDIAN AND ALASKA NATIVE CHILDREN: LESSONS FROM TRIBAL TRADITIONS 37 Capital University Law Review 239 (Winter 2008) One of the many challenges facing the American child welfare system is the need for practices that are responsive to the unique cultural needs of the children who are placed in foster care. The goal of achieving permanent, stable placements for children in the child welfare system is an over-arching objective, but permanency is a chameleon term... 2008
Judith T. Younger Across Curricular Boundaries: Searching for a Confluence Between Marital Agreements and Indian Land Transactions 26 Law & Inequality: A Journal of Theory and Practice 495 (Summer 2008) We begin today with Socrates. Socrates will lead us inexorably, though unwittingly, into a curricular experiment. The experiment, in turn, will take us across continents and centuries. It will go on for about forty-five minutes--no more, I promise. The experiment will end with a true, and I think, funny, story. Of course, there will be a moral.... 2008
Philip P. Frickey ADDRESS AT UNIVERSITY OF KANSAS CONFERENCE ON TRIBAL LAW AND INSTITUTIONS, FEBRUARY 2, 2008 TRIBAL LAW, TRIBAL CONTEXT, AND THE FEDERAL COURTS 18-FALL Kansas Journal of Law & Public Policy 24 (Fall 2008) It is an honor to be asked to speak here today, before such a distinguished gathering of tribal leaders, scholars, lawyers, and law students. It is a bit of a homecoming, actually. I grew up in Kansas and graduated from KU with a degree in political science, in what seems like just a few years ago. It is very nice to be back. Let me begin by... 2008
Robert J. Miller American Indian Entrepreneurs: Unique Challenges, Unlimited Potential 40 Arizona State Law Journal 1297 (Winter 2008) Creating economic development and activity in Indian country is an absolutely crucial issue today. In fact, it is probably the most important modern day political, social, and financial concern that Indian nations and Indian people face. Tribal governments and Indians need to create jobs and economic activity on their reservations for tribal... 2008
Robert D. Cooter , Wolfgang Fikentscher American Indian Law Codes: Pragmatic Law and Tribal Identity 56 American Journal of Comparative Law 29 (Winter 2008) The United States has recognized the power of American Indian tribes to make laws at least since 1934. Most tribes, however, did not write down many of their laws until the 1960s. Written laws have subsequently accumulated in well-organized codes, but scholars have not previously researched them. Using written materials and interviews with tribal... 2008
Kevin K. Washburn American Indians Crime and the Law: Five Years of Scholarship on Criminal Justice in Indian Country 40 Arizona State Law Journal 1003 (Fall 2008) It is a tremendous honor to serve as the inaugural William C. Canby, Jr., Scholar in Residence. I must begin by talking about the man that this post was created to honor. Judge Canby was a law professor on the Arizona State faculty when, in 1980, he was appointed by President Jimmy Carter to the U.S. Court of Appeals for the Ninth Circuit. Among... 2008
Sarah Krakoff American Indians, Climate Change, and Ethics for a Warming World 85 Denver University Law Review 865 (2008) Developing a sense of ourselves that would properly balance history and nature and space and time is a more difficult task than we would suspect and involves a radical reevaluation of the way we look at the world around us. Do we continue to exploit the earth or do we preserve it and preserve life? Whether we are prepared to embark on a painful... 2008
Elizabeth Loeb As "Every Schoolboy Knows": Gender, Land, and Native Title in the United States 32 New York University Review of Law and Social Change 253 (2008) This article begins with an obvious but necessary premise: the U.S. state has historically produced itself as sovereign over a specific territorial mass through the violent conquest and continuing occupation of lands to which Native Americans also lay and have laid sovereign claim. At its core, this article seeks to ask how a Liberal conception of... 2008
Jenna Gruenstein Australia's Northern Territory National Emergency Response Act: Addressing Indigenous and Non-indigenous Inequities at the Expense of International Human Rights? 17 Pacific Rim Law & Policy Journal 467 (March, 2008) In 2007, Australia passed the Northern Territory National Emergency Response Act (NT Emergency Response Act), ostensibly reacting to a recent report detailing exceedingly high levels of sexual abuse of Aboriginal children. This Comment argues that the NT Emergency Response Act likely violates Australia's obligations under the United... 2008
D. Kapua‘ala Sproat Avoiding Trouble in Paradise 18-DEC Business Law Today 29 (November/December, 2008) Whether you are a Kanaka Maoli (Native Hawaiian) whose ancestors have inhabited these islands since time immemorial or a first-time visitor, it doesn't take long to understand that things in Hawaii are unique. The law is no exception. The sooner one understands Hawaii's indigenous culture and legal framework, the easier things are--especially for... 2008
Eric Dannenmaier Beyond Indigenous Property Rights: Exploring the Emergence of a Distinctive Connection Doctrine 86 Washington University Law Review 53 (2008) Human rights law has begun to offer normative protection for what remains of indigenous lands. Yet territory now better defended from conquest and encroachment is increasingly threatened by their byproducts. Water scarcity, food security, waste deposition, climate change--in short, the multiple impacts of industrial development--pose a new... 2008
Gary Goldsmith Big Spenders in State Elections--has Financial Participation by Indian Tribes Defined the Limits of Tribal Sovereign Immunity from Suit? 34 William Mitchell Law Review 659 (2008) I. Introduction. 659 II. John Marshall and the Supreme Court Establish the Roots of the Doctrine of Indian Tribal Sovereignty. 663 III. The Promises of Indian Treaties are Weakened as a Basis for Tribal Sovereignty. 669 IV. States Efforts to Exert Their Jurisdiction Over Tribal Lands and Members. 673 V. The Regulatory Cases Provide Opportunities... 2008
Gary Goldsmith BIG SPENDERS IN STATE ELECTIONS--HAS FINANCIAL PARTICIPATION BY INDIAN TRIBES DEFINED THE LIMITS OF TRIBAL SOVEREIGN IMMUNITY FROM SUIT? 34 William Mitchell Law Review 659 (2008) I. Introduction. 659 II. John Marshall and the Supreme Court Establish the Roots of the Doctrine of Indian Tribal Sovereignty. 663 III. The Promises of Indian Treaties are Weakened as a Basis for Tribal Sovereignty. 669 IV. States Efforts to Exert Their Jurisdiction Over Tribal Lands and Members. 673 V. The Regulatory Cases Provide Opportunities... 2008
Prabha Kotiswaran Born unto Brothels--toward a Legal Ethnography of Sex Work in an Indian Red-light Area 33 Law and Social Inquiry 579 (Summer, 2008) The global sex panic around sex work and trafficking has fostered prostitution law reform worldwide. While the normative status of sex work remains deeply contested, abolitionists and sex work advocates alike display an unwavering faith in the power of criminal law; for abolitionists, strictly enforced criminal laws can eliminate sex markets,... 2008
Eric C. Chaffee Business Organizations and Tribal Self-determination: a Critical Reexamination of the Alaska Native Claims Settlement Act 25 Alaska Law Review 107 (June, 2008) In 1971, Congress enacted the Alaska Native Claims Settlement Act. This Act required that Native American groups in Alaska form corporations to receive property and money to settle their claims to the land and resources of the state. The Act represents an unprecedented experiment in Native American law. Because the Act required that Alaska Natives... 2008
by Margaret Robison Kantlehner Carcieri et Al. 36 No.2 Preview of United States Supreme Court Cases 130 (11/3/2008) The Indian Reorganization Act authorizes the Secretary of the Interior to acquire lands for Indians, and defines that term to include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction. Now the Court has agreed to consider whether the Act authorizes the Secretary to take land into trust... 2008
Emily Bucher Civil Procedure: Narrowed Lens, Clearer Focus: Considering the Use of De Novo Review in Indian Child Welfare Proceedings--in re Welfare of Child of T.t.b. 34 William Mitchell Law Review 1429 (2008) I. Introduction. 1429 II. History. 1432 A. The Indian Child Welfare Act. 1433 B. Mississippi Band of Choctaw Indians v. Holyfield. 1436 C. Considering Minnesota. 1438 D. The Dangers of Good Cause . 1440 E. 1442 III. In re Welfare of Child of T.T.B.. 1442 IV. Analysis. 1447 V. Subsequent Developments: Evidence of Applied Interpretive... 2008
Karim M. Tiro Claims Arising: the Oneida Nation of Wisconsin and the Indian Claims Commission, 1951-1982 32 American Indian Law Review 509 (2007-2008) The Oneida Indian Nation of Wisconsin is one of three Oneida tribes today whose members trace their descent to the Oneida tribe that existed in present-day New York State when the first Europeans arrived, and constituted one of the Five (later Six) Nations of the Iroquois League. The Wisconsin Oneidas were a party to multiple claims before the... 2008
Michael L. Connolly Commercial Scale Wind Industry on the Campo Indian Reservation 23-SUM Natural Resources & Environment 25 (Summer, 2008) Many Indian reservations have substantial potential for wind power development. Unfortunately, the current legal framework that provides incentives for the development of utility scale wind power projects does not work very well for Indian tribal governments. As sovereigns, tribal governments are not taxable entities under federal law, and so the... 2008
  Conference Transcript: the New Realism: the next Generation of Scholarship in Federal Indian Law 32 American Indian Law Review Rev. 1 (2007-2008) MS. HICKS: My name is Sarah Hicks. I am Alutiiq from Kodiak, Alaska, enrolled in the Native Village of Ouzinkie, a community of about 200 people. I have been working for the National Congress of American Indians for about the last eight years. For the last two years, I have had the pleasure of serving as the Director of our new Policy Research... 2008
Timothy J. Droske Correcting Native American Sentencing Disparity Post-booker 91 Marquette Law Review 723 (Spring 2008) In South Dakota, a defendant convicted of assault in state court receives an average sentence of twenty-nine months. However, if a Native American defendant were to commit that same offense within one of the Indian reservations in South Dakota, the defendant would be prosecuted in federal court and receive an average sentence of forty-seven months.... 2008
Hallie Bongar White , Kelly Gaines Stoner , The Honorable James G. White Creative Civil Remedies Against Non-indian Offenders in Indian Country 44 Tulsa Law Review 427 (Winter 2008) Indian women suffer the highest rates of domestic violence, stalking, and sexual assault of any population in the United States. The majority of perpetrators of these crimes are non-Indian males. Paradoxically, tribal courts may not currently exercise criminal jurisdiction over non-Indians who commit these crimes in Indian Country. The mantle of... 2008
Leonardo A. Crippa Cross-cutting Issues in the Application of the Guatemalan "Nepa": Environmental Impact Assessment and the Rights of Indigenous Peoples 24 American University International Law Review 103 (2008) INTRODUCTION. 104 I. COMPARATIVE ANALYSIS OF THE U.S. NEPA AND THE EQUIVALENT GUATEMALAN LEGISLATION. 107 A. An Overview of the Guatemalan Law for Environmental Assessment, Control and Follow-up (LEACF). 108 1. Environmental Impact Assessment. 110 2. The Requirement of Public Participation Under Guatemalan Law. 112 B. The Requirement of an... 2008
Ezekiel J.N. Fletcher DE FACTO JUDICIAL PREEMPTION OF TRIBAL LABOR AND EMPLOYMENT LAW 2008 Michigan State Law Review 435 (Summer, 2008) C1-3Table of Contents I. Introduction--Conflicting Federal Common Law Approaches to Federal Statutes of General Applicability. 436 II. Overview of Federal Labor and Employment Laws and the Current Application of Such Laws to Indian Tribes. 440 A. Federal Statutes Containing Express Exemptions for Indian Tribes. 441 1. Title VII of the Civil Rights... 2008
Gabriel S. Galanda, Anthony S. Broadman Deal or No Deal? 18-DEC Business Law Today 11 (November/December, 2008) If you do deals, sooner or later you will find yourself in Indian Country. The numbers are staggering: tribes generate over $25 billion in revenue from gaming alone and are diversifying their economic activity through entrepreneurial inroads as varied as manufacturing, agriculture, real estate development, telecommunications, and banking. But... 2008
S. Radhakrishnan Development of Human Rights in an Indian Context 36 International Journal of Legal Information 303 (Summer, 2008) Albert Einstein, in an Address in Chicago observed: [t]he existence and validity of human rights are not written in the stars. The ideals concerning the conduct of men towards each other and the desirable structure of the community have been conceived and taught by enlightened individuals in the course of history. Those ideals and convictions which... 2008
Donald M. Goldberg, Tracy Badua Do People Have Standing? Indigenous Peoples, Global Warming, and Human Rights 11 Barry Law Review 59 (Fall, 2008) Several years ago, author Christopher Stone wrote a book called Do Trees Have Standing? that has become a staple of environmental scholarship. As policymakers look for new solutions in combating climate change, increasing attention is being paid to the role of forests and the indigenous peoples that live in them. While forests provide numerous... 2008
Thomas Weathers Encouraging Business with Indian Tribes 18-DEC Business Law Today 17 (November/December, 2008) Indian tribes occupy a unique status under our law. They are domestic dependent nations that exercise inherent sovereign authority over their members and their lands similar to that of states and foreign governments. They have the power to make their own substantive law on internal matters and to enforce that law in their own forums. They are, in... 2008
Jason Krause Fear of the 'Native' 94-JAN ABA Journal 59 (January, 2008) The last thing anyone wanted was to make responding to e-discovery demands more difficult. Changes to the Federal Rules of Civil Procedure, introduced at the end of 2006, were supposed to make life easier for litigants compelled to produce electronic documents. But some businesses hit with preservation orders are finding they are actually saving... 2008
  Federal Indian Law 35 No.8 Preview of United States Supreme Court Cases 411 (8/11/2008) Does a tribal court have jurisdiction to hear a discrimination claim concerning the sale of non-Indian fee land by a non-Indian entity to non-Indians? No. The Court cited Montana v. United States, which established the general rule that Indian tribes lack authority over nonmembers, except in two special circumstances, which came to be known as the... 2008
Alexa Koenig , Jonathan Stein Federalism and the State Recognition of Native American Tribes: a Survey of State-recognized Tribes and State Recognition Processes Across the United States 48 Santa Clara Law Review 79 (2008) The territory that comprises the state of Virginia has been home to Native Americans for hundreds--if not thousands--of years. Documentary and other evidence establishes that Indians were present in the area long before the building of the Jamestown colony. American lore and numerous historic records tell the tale of Pocahontas, a Native American... 2008
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