Nicole Harris, San Francisco Our Mini-theme: Native America 18-DEC Business Law Today Today 8 (November/December, 2008) The law is a system that provides social cohesion while at the same time revealing much about our culture in a nation of many people and customs. In this issue, we celebrate the Native peoples of our nation, which include Native Americans, Alaska Natives, and Native Hawaiians. Few of us have had the opportunity to develop a deep understanding of... 2008
by Matthew L. M. Fletcher Plains Commerce Bank 35 No.7 Preview of United States Supreme Court Cases 329 (4/14/2008) In a case arising on the Cheyenne River Sioux Tribe's reservation in South Dakota, an Indian tribal member-owned company sued a nonmember-owned bank in tribal court to prevent the foreclosure and sale of its ranching land and to assert contract and discrimination claims. This case provides the Court an opportunity to clarify the extent to which a... 2008
Eamon Lorincz Possessing the Pacific: Land, Settlers, and Indigenous People from Australia to Alaska, by Stuart Banner. Cambridge, Massachusetts: Harvard University Press. 2007. 32 Harvard Environmental Law Review 597 (2008) Most people leave school with a simple understanding of the relationship between British and American colonists, Native Americans and Pacific Islanders, and the lands of the New World: the colonists wanted it, the natives had it, and the colonists used whatever means available to take it. In his new book, Possessing the Pacific: Land, Settlers,... 2008
Dorothy E. Schmidt Postcard from the Reality-based Universe: "Wish You Were All Here!" a Meditation on the Relationship Between Science, Intellectual Property Law, and the Rights of Indigenous Populations in Plant Genetic Resources 38 Environmental Law 315 (Winter 2008) Patents on plant-derived products, and subsequent adverse impacts on the economic and environmental well-being of indigenous populations, have generated numerous high-profile controversies. Critics of intellectual property law typically call the actions and outcomes involved biopiracy or worse. On the other hand, critics of biopiracy arguments... 2008
Judith V. Royster Practical Sovereignty, Political Sovereignty, and the Indian Tribal Energy Development and Self-determination Act 12 Lewis & Clark Law Review 1065 (Winter 2008) This Article addresses the latest attempt by Congress to promote tribal self-determination through a statute designed to increase tribal control over energy resource development on Indian lands. The author begins with a brief history of the gradual transfer of control over tribal resources from the federal government to tribes. This shift in... 2008
André Douglas Pond Cummings Progress Realized?: the Continuing American Indian Mascot Quandary 18 Marquette Sports Law Review 309 (Spring 2008) On every fall Saturday in the United States, a young, white male college student goes about a deliberate ritual that stuns in its audacity. This white student will pull on buckskin leggings with fringes and an intricate bone and pearl breastplate. This white student will paint his face with war colors that represent power and tradition. This... 2008
Jon Reyhner Promoting Human Rights Through Indigenous Language Revitalization 3 Intercultural Human Rights Law Review 151 (2008) The National Geographic Society's Enduring Voices project notes that about every two weeks another language dies, taking millennia of human knowledge and history with it. Writing in The Wall Street Journal, John J. Miller declared that the increasing pace of language death is a trend that is arguably worth celebrating . . . [because] age-old... 2008
Ezra Rosser Protecting Non-indians from Harm? The Property Consequences of Indians 87 Oregon Law Review 175 (2008) For the term following the confirmation of Justice Alito and Chief Justice Roberts, the Supreme Court did not grant certiorari on any Indian law case for perhaps the first time since 1960. With the Native American Rights Fund and other pan-Indian organizations actively pursuing an avoid-the-Court strategy, necessitated by the Court's hostility... 2008
Ezra Rosser PROTECTING NON-INDIANS FROM HARM? THE PROPERTY CONSEQUENCES OF INDIANS 87 Oregon Law Review 175 (2008) For the term following the confirmation of Justice Alito and Chief Justice Roberts, the Supreme Court did not grant certiorari on any Indian law case for perhaps the first time since 1960. With the Native American Rights Fund and other pan-Indian organizations actively pursuing an avoid-the-Court strategy, necessitated by the Court's hostility... 2008
Andrew Herrold Protecting the Smile of the Great Spirit : the Need for Increased Stewardship of New Hampshire's Shorelands 16 Penn State Environmental Law Review 403 (Winter 2008) In October, 2006, at the time of the original writing of this comment, a commission charged with reviewing the effectiveness of New Hampshire's Comprehensive Shoreland Protection Act (CSPA or the Act) was nearing completion of its fifteen month assignment. The Commission presented its final report to state officials on November 30, 2006. The... 2008
Solangel Maldonado Race, Culture, and Adoption: Lessons from Mississippi Band of Choctaw Indians V. Holyfield 17 Columbia Journal of Gender and Law L. 1 (2008) Jennie Bell, a member of the Mississippi Band of Choctaw Indians, a federally recognized tribe, was facing some difficult decisions. She was twenty-four years old, a single mother of two, and she was pregnant with twins by a man who was married to another woman and had two children of his own. Unemployed and not able to raise the twins herself, she... 2008
Adam Grieser , Peter Jacques , Richard Witmer , Harvard School of Law, University of Central Florida, Creighton University Reconsidering Religion Policy as Violence: Lyng V. Northwest Indian Cemetery Protective Association 10 Scholar: St. Mary's Law Review on Minority Issues 373 (Spring 2008) I. Context. 374 II. Ruling. 376 A. A General Theory of Violence in Indian Policy. 378 III. The Lyng Decision as Violence. 384 IV. The Court and Lyng. 393 A. Implications and Conclusion: The Lyng Ruling as Legal Contradiction. 394 V. Discussion. 395 2008
Phillip M. Kannan Reinstating Treaty-making with Native American Tribes 16 William & Mary Bill of Rights Journal 809 (March, 2008) Mr. [President], tear down this wall! There is a wall that prevents Native American tribes and the United States from forming political partnerships under the Treaty Clause of the Constitution. It was created by a rider to the Indian Appropriation Act of 1871. The current text of the statute states, in part: [N]o Indian nation or tribe within the... 2008
Amber Halldin Restoring the Victim and the Community: a Look at the Tribal Response to Sexual Violence Committed by Non-indians in Indian Country Through Non-criminal Approaches 84 North Dakota Law Review Rev. 1 (2008) If the Physical, Mental, Emotional and Spiritual Well Being of the Woman is intact, so too is that of the Family, Community and Society. Sexual or domestic violence inflicted upon women of color has always been a problem in the United States. In particular, Native American women receive the brunt of this criminal action as the race that receives... 2008
T.S. Twibell Rethinking Johnson V. M'intosh (1823): the Root of the Continued Forced Displacement of American Indians Despite Cobell V. Norton (2001) 23 Georgetown Immigration Law Journal 129 (Fall, 2008) The accepted principle of governing the discovery of barbarous countries by civilized people is that discovery gave the state by whose subjects or by whose authority it was made the exclusive right to settle, possess, and govern the new land and the absolute title to the soil, subject to certain right of occupancy only in the natives . when the... 2008
  Richard D. Mclellan & Kristine N. Tuma Taxpayers of Michigan Against Casinos, a Michigan Non-profit Corporation, and Laura Baird, State Representative, Michigan House of Representatives, in Her Official Capacity, Plaintiffs/appellees, V. the State of Mich 25 Thomas M. Cooley Law Review 381 (2008) The Distinguished Brief Award is given in recognition of the most scholarly briefs filed before the Michigan Supreme Court, as determined by a panel of eminent jurists. Three briefs are chosen each year and printed in the Thomas M. Cooley Law Review. To preserve the author's style, the brief has been reprinted in its entirety, exactly as submitted... 2008
Eunjung Park Searching for a Voice: the Indigenous People in Polar Regions 8 Sustainable Development Law & Policy 30 (Spring, 2008) Despite the perception of outsiders that it is a frozen land, the Arctic is home to over 3.5 million indigenous people, including the Inuits, the Saami, the Chukchi, and many more. Interestingly, one of the main differences between the two Polar Regions is the absence of indigenous people in the Antarctic and the presence of them in the Arctic.... 2008
Virginia Davis , Kevin Washburn Sex Offender Registration in Indian Country 6 Ohio State Journal of Criminal Law L. 3 (Fall, 2008) Sex offenses against women and children may be a more serious problem in American Indian and Alaska Native communities than any other communities in theUnited States. While, on average, a woman in the United States faces a one in five chance of being raped in her lifetime, the statistics for American Indian and Alaska Native women are far graver:... 2008
Suzanne Koepplinger Sex Trafficking of American Indian Women and Girls in Minnesota 6 University of Saint Thomas Law Journal 129 (Fall 2008) The views represented in this article are those of the author. The terms American Indian, Native American, and Indian will be used interchangeably. The Minnesota Indian Women's Resource Center (MIWRC), in partnership with several culturally based non-profit service providers in the state, recently began investigating anecdotal reports of... 2008
Christine Zuni Cruz Shadow War Scholarship, Indigenous Legal Tradition, and Modern Law in Indian Country 47 Washburn Law Journal 631 (Spring 2008) this idea of the shadow war--a war of words and thinking --to protect mental sovereignty works in conjunction with promoting understanding and dispelling orcountering disinformation in respect to the indigenous legal tradition and tribal law This essay comments on the multi-layered experience of establishing an electronic law journal for the... 2008
Terry L. Anderson , Dominic P. Parker , Property and Environment Research Center, University of California, Santa Barbara Sovereignty, Credible Commitments, and Economic Prosperity on American Indian Reservations 51 Journal of Law & Economics 641 (November, 2008) American Indian reservations are islands of poverty in a sea of wealth. Because this poverty cannot be explained solely by natural resource, physical, and human capital constraints, institutions are likely to be part of the explanation. One of the institutional variables is the sovereign power of tribes, which allows tribal governments to act... 2008
Sean Hill Sunshine in Indian Country: a Pro-foia View of Klamath Water Users 32 American Indian Law Review 463 (2007-2008) In U.S. Department of the Interior v. Klamath Water Users Protective Ass'n, the U.S. Supreme Court examined the application of the Federal Freedom of Information Act (FOIA) and its exemption for interagency and intra-agency communications to documents passing between Indian tribes and the Department of the Interior. The Court determined, for... 2008
Erik M. Jensen Taxation and Doing Business in Indian Country 60 Maine Law Review Rev. 1 (2008) Economic development on the lands of the American Indian nations has been spotty at best. Almost everyone knows the great success stories with Indian gaming, which has been furthered by federal legislation, but those economic benefits have not been felt uniformly. Some tribes have prospered because of this peculiarly favored form of enterprise;... 2008
Liana Gregory Technically Open: the Debate over Native American Reserved Groundwater Rights 28 Journal of Land, Resources, and Environmental Law 361 (2008) The challenge of providing water to all people in the arid Western states becomes increasingly more difficult as the population in these states continues to grow exponentially. Meanwhile, drought constantly threatens the already strained sources, forcing communities to confront the shortage through conservation efforts and mandated restrictions.... 2008
Eric Kades The "Middle Ground" Perspective on the Expropriation of Indian Lands 33 Law and Social Inquiry 827 (Summer, 2008) Banner, Stuart. 2005. How the Indians Lost Their Land, Law and Power on the Frontier. Cambridge, MA: Belknap and Harvard University Press. Pp. 344. $29.95 cloth. In How the Indians Lost Their Land, Law and Power on the Frontier (2005), Stuart Banner weaves together a perceptive interpretation of the historical record, with a novel economic analysis... 2008
Daniel Cordalis, Dean B. Suagee The Effects of Climate Change on American Indian and Alaska Native Tribes 22-WTR Natural Resources & Environment 45 (Winter, 2008) Climate change will affect American Indian tribes differently than the larger American society. Tribal cultures are integrated into the ecosystems of North America, and many tribal economies are heavily dependent on the use of fish, wildlife, and native plants. Even where tribal economies are integrated into the national economy, tribal cultural... 2008
D. Michael McBride III The Fba's Indian Law Section: Vetting the Important Issues Regarding Indian Country 55-APR Federal Lawyer Law. 4 (March/April, 2008) The Federal Bar Association's Indian Law Section is the largest Indian law organization in the country. The section has a lot of which to be proud, including its members, who are leaders in the field. This issue of The Federal Lawyer includes some important and comprehensive, scholarly discussions of Indian law issues written by the section's... 2008
Jon Beidelschies The Impact of the United Nations Declaration on the Rights of Indigenous Peoples on Wisconsin Tribes 26 Wisconsin International Law Journal 479 (Summer 2008) On June 29, 2006, the United Nations Human Rights Council (HRC) sent a draft Declaration on the Rights of Indigenous Peoples (Declaration), to the General Assembly for a vote. This action caused muted celebration in some indigenous communities of United Nations' member states. Some nations and indigenous groups saw this as the penultimate step... 2008
Dwight G. Newman The Law and Politics of Indigenous Rights in the Postcolonial African State 102 American Society of International Law Proceedings 69 (April 9-12, 2008) Within these remarks, I comment on processes of international norm formation in the specific context of the United Nations Declaration on the Rights of Indigenous Peoples. In particular, through attention to the role of African states in relation to the Declaration, I suggest there is significant value in going beyond the states more typically used... 2008
Kevin K. Washburn The Legacy of Bryan V. Itasca County: How an Erroneous $147 County Tax Notice Helped Bring Tribes $200 Billion in Indian Gaming Revenue 92 Minnesota Law Review 919 (April, 2008) One day in the spring of 1972, a man walked across the property of Helen and Russell Bryan near Squaw Lake on the Leech Lake Indian Reservation, quietly measured the family's new Skyline trailer home, and left without saying a word. The Bryans were left wondering about his purpose. A short time later, the mystery was solved when the Bryans received... 2008
Nathan Goetting The Marshall Trilogy and the Constitutional Dehumanization of American Indians 65 Guild Practitioner 207 (Winter 2008) What law have I broken? Is it wrong for me to love my own? Is it wicked in me because my skin is red? --Sitting Bull Nits make lice. --Col. John Chivington While it is too simple to say that racism was the sole cause of the conquest and subjugation of the North American native population, it was certainly at the heart of it, just as racism was... 2008
Robert Van Horn The Native American Graves Protection and Repatriation Act at the Margin: Does Nagpra Govern the Disposition of Ancient, Culturally Unidentifiable Human Remains? 15 Washington and Lee Journal of Civil Rights and Social Justice 227 (Fall, 2008) C1-3Table of Contents I. Introduction. 228 II. Grave Protections at Common Law and Under State Statute. 230 A. Grave Protections at Early American Common Law. 230 B. Common Law Standing. 232 C. Cemetery Protections at Common Law and Under State Statute. 234 III. NAGPRA. 237 A. Overview. 237 B. Statutory Limitations on Repatriation. 238 C. What is ... 2008
Caitlin E. Flanagan The Need for Compromise: Introducing Indian Gaming and Commercial Casinos to Massachusetts 42 Suffolk University Law Review 179 (2008) In rejecting the compromised nature of the federal legal doctrine of tribal sovereignty and reaching a new compromise among sovereigns, state, tribal, and federal political actors may craft fair and effective Indian gaming law and policy. A compromise reached by sovereign governments need not compromise either the interests of non-Indians or the... 2008
Mahealani Wendt The Needs of Native Hawaiians in Achieving Access to Justice 12-DEC Hawaii Bar Journal 10 (December, 2008) Native Hawaiians continue to be chronically overrepresented on many indicia of social, political and economic well-being. Based on the last available census figures, there are approximately 239,655 Native Hawaiians living in Hawai'i, 14%, or approximately 33,552 of whom live below the federal poverty level. In addition, 28% of all recipients of... 2008
Matthew L.M. Fletcher The Original Understanding of the Political Status of Indian Tribes 82 Saint John's Law Review 153 (Winter 2008) Influential and formidable legal minds, including Justice Blackmun, Justice Stevens, and Judge Kozinski, have been among the federal and state court judges confronted with the dynamic and sizeable question of whether Indian law is a question of race law or a question of politics. These judges' responses indicated that they were all but overwhelmed... 2008
Matthew L.M. Fletcher THE ORIGINAL UNDERSTANDING OF THE POLITICAL STATUS OF INDIAN TRIBES 82 Saint John's Law Review 153 (Winter 2008) Influential and formidable legal minds, including Justice Blackmun, Justice Stevens, and Judge Kozinski, have been among the federal and state court judges confronted with the dynamic and sizeable question of whether Indian law is a question of race law or a question of politics. These judges' responses indicated that they were all but overwhelmed... 2008
John C. Kuzenski, J.D., Ph.D. The Paving Principle of Good Intentions? Calls for Reform of the Indian Gaming Regulatory Act and the Private Game Theory Equilibrium Opposing Them 30 North Carolina Central Law Review 168 (2008) Indian gaming has become a multi-billion dollar industry in the United States since passage of the Indian Gaming Regulatory Act of 1988 (IGRA); the Act itself was passed by Congress in the wake of several key and bitterly-fought judicial contests in which the interests of Indian tribes and states of the union clashed. Since that time, the IGRA has... 2008
Stephen Cornell The Political Economy of American Indian Gaming 4 Annual Review of Law and Social Science 63 (2008) tribal sovereignty, economic development, gambling Since the late 1980s, the commercial gaming industry has grown rapidly on American Indian reservations. Today, more than 200 Indian nations own more than 400 gaming operations in 28 states, yielding revenues in 2006 of more than $25 billion. How did this come about and what are the effects on... 2008
Jason Gubi The Religious Freedom Restoration Act and Protection of Native American Religious Practices 4 Modern American 73 (Fall, 2008) While there has been debate as to what the religion clauses protect, nearly all observers would agree that the First Amendment prohibits the federal government from establishing a national religion. Yet, from 1882 to 1932, the federal government subsidized the conversion of Native Americans to Christianity, while simultaneously banning Native... 2008
Matthew L.M. Fletcher The Supreme Court and the Rule of Law: Case Studies in Indian Law 55-APR Federal Lawyer 26 (March/April, 2008) This constitutional system floats on a sea of public acceptance. --Justice Breyer Federal Indian law has had a strange history that dates back to the foundational cases known as the Marshall Trilogy. Even though observers subject federal Indian law to rightful criticisms about the use of law to legitimize a colonial state, the dispossession of... 2008
Matthew L.M. Fletcher The Supreme Court's Indian Problem 59 Hastings Law Journal 579 (February, 2008) [These] matters [are] more likely to arouse the judicial libido--voting rights, antidiscrimination laws, or environmental protection, to name only a few . . . . -- Justice Scalia [T]he Supreme Court sort of makes it up as they go along. -- Judge Roger L. Wollman This constitutional system floats on a sea of public acceptance. -- Justice Breyer What... 2008
Mark Shahinian The Tax Man Cometh Not: How the Non-transferability of Tax Credits Harms Indian Tribes 32 American Indian Law Review 267 (2007-2008) It is commonly thought that Indian tribes enjoy a significant business advantage because they are tax-free entities. This is often true -- an entity that does not pay 35% of its earnings to the government is generally better off than one that does. However, in certain industries, the tax credits available are so great that not paying taxes hurts... 2008
William Wood The Trajectory of Indian Country in California: Rancherías, Villages, Pueblos, Missions, Ranchos, Reservations, Colonies, and Rancherias 44 Tulsa Law Review 317 (Winter 2008) This article examines the path, or trajectory, of Indian country in California. More precisely, it explores the origin and historical development over the last three centuries of a legal principle and practice under which a particular, protected status has been extended to land areas belonging to and occupied by indigenous peoples in what is now... 2008
Adam F. Kinney The Tribe, the Empire, and the Nation: Enforceability of Pre-revolutionary Treaties with Native American Tribes 39 Case Western Reserve Journal of International Law 897 (2007-2008) If there fall out any wars between us and them, what their fight is likely to be, we having advantages against them so many manner of ways, as by our discipline, our strange weapons and devices else, especially by ordinance great and small, it may easily be imagined; by the experience we have had in some places, the turning up of their heels... 2008
Viniyanka Prasad The Un Declaration on the Rights of Indigenous Peoples: a Flexible Approach to Addressing the Unique Needs of Varying Populations 9 Chicago Journal of International Law 297 (Summer 2008) In September of 2007, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples (Declaration). The Declaration presents a comprehensive list of rights, unique to indigenous populations, which have often gone overlooked by national governments and international organizations. These rights touch nearly every... 2008
Scott A. Taylor The Unending Onslaught on Tribal Sovereignty: State Income Taxation of Non-member Indians 91 Marquette Law Review 917 (Summer 2008) I. Introduction. 917 II. The Antecedents. 920 A. The Colonial Period. 920 B. British Taxation. 923 C. Confederation and the Early Federal Period. 924 D. Worcester v. Georgia. 928 E. The Confederate Constitution. 932 F. Early State Attempts to Tax Tribes. 933 G. The Fourteenth Amendment. 936 H. New States and Enabling Legislation. 938 I. Allotment.... 2008
Werner Menski The Uniform Civil Code Debate in Indian Law: New Developments and Changing Agenda 9 German Law Journal 211 (3/1/2008) Postcolonial India's modernist ambition to have a Uniform Civil Code, impressively written into Article 44 of the Indian Constitution of 1950 as a non-justiciable Directive Principle of State Policy, concerns not just an Indian problem but a universal predicament for lawyers and legal systems. What is the relationship between personal status laws... 2008
Don Wedll The United Nations Declaration on the Rights of Indigenous Peoples and its Relevance to American Indians in Minnesota and Beyond 30 Hamline Journal of Public Law and Policy 387 (Fall 2008) The United Nations (UN) made history for indigenous people around the world on September 13, 2007, when the UN General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples. This declaration was approved through the UN Committee on the Elimination of Racial Discrimination (CERD), voted for by 144 out of 159 nations,... 2008
Barbara Atwood The Voice of the Indian Child: Strengthening the Indian Child Welfare Act Through Children's Participation 50 Arizona Law Review 127 (Spring 2008) This Article explores the potential benefits and challenges of giving more prominence to the voice of the Indian child in ICWA proceedings, a topic that has received scant attention from scholars and courts. The Act itself authorizes the appointment of counsel for children and provides that state courts may consider the child's wishes as to... 2008
George P. Generas, Jr. , Karen Gantt This Land Is Your Land, this Land Is My Land: Indian Land Claims 28 Journal of Land, Resources, and Environmental Law L. 1 (2008) I. Purpose. 1 II. Pre-Constitution Era. 2 III. The Confederation and Constitution Era. 6 IV. The Indian Trade and Intercourse Acts. 9 V. The Marshall Trilogy. 10 VI. The Modern Era. 14 VII. Federal Recognition. 15 VIII. Federal Land Claims Settlement Acts. 15 IX. Origin of the Acts. 16 X. The Modern Era: The Oneida Claims I and II. 17 2008
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