AuthorTitleCitationSummaryYear
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
Jacob T. Levy Three Perversities of Indian Law 12 Texas Review of Law and Politics 329 (Spring 2008) I. Introduction. 330 II. The Setting. 332 A. Indian Law and Indian Country. 332 B. Self-Determination and Dependence. 336 III. Criminal Jurisdiction. 342 IV. Civil Jurisdiction. 346 A. The Nonjurisdiction Rule and the Second Montana Exception. 349 B. The First Montana Exception. 355 C. An Objection. 355 V. Economic Policy. 361 VI. Conclusion. 366 2008
Stephen J. Powell , Paola A. Chavarro Toward a Vibrant Peruvian Middle Class: Effects of the Peru-united States Free Trade Agreement on Labor Rights, Biodiversity, and Indigenous Populations 20 Florida Journal of International Law S93 (2008) The International Trade Law Program at the University of Florida has explored in some depth the general impact of trade rules on human rights. Our premise is straightforward. Trade and human rights are inextricably linked because trade rules weaken the ability of governments to promote sustainable development, to alleviate the widening gap between... 2008
Patrick M. Garry , Candice J. Spurlin , Jennifer L. Keating , Derek A. Nelsen Tribal Incorporation of First Amendment Norms: a Case Study of the Indian Tribes of South Dakota 53 South Dakota Law Review 335 (2008) As American culture becomes more individualistic, social and legal opposition has arisen regarding expansive judicial interpretations of First Amendment freedoms. According to this opposition, the courts have interpreted such freedoms in an almost exclusively individualistic light, with little regard for community interests and values. This debate... 2008
Cruz Reynoso , William C. Kidder Tribal Membership and State Law Affirmative Action Bans: Can Membership in a Federally Recognized American Indian Tribe Be a plus Factor in Admissions at Public Universities in California and Washington? 27 Chicana/o-Latina/o Law Review 29 (2008) The group at the statistical bottom of all the scales thought to measure lack of opportunity is American Indians. A line of viable Supreme Court authority holds that equal protection of the law does not require strict scrutiny of laws singling out Indians for advantage or disadvantage, when Indians is understood to mean members of federally... 2008
Cruz Reynoso , William C. Kidder TRIBAL MEMBERSHIP AND STATE LAW AFFIRMATIVE ACTION BANS: CAN MEMBERSHIP IN A FEDERALLY RECOGNIZED AMERICAN INDIAN TRIBE BE A PLUS FACTOR IN ADMISSIONS AT PUBLIC UNIVERSITIES IN CALIFORNIA AND WASHINGTON? 27 Chicana/o-Latina/o Law Review 29 (2008) The group at the statistical bottom of all the scales thought to measure lack of opportunity is American Indians. A line of viable Supreme Court authority holds that equal protection of the law does not require strict scrutiny of laws singling out Indians for advantage or disadvantage, when Indians is understood to mean members of federally... 2008
Angelique A. EagleWoman , (Wambdi A. WasteWin) Tribal Nation Economics: Rebuilding Commercial Prosperity in Spite of U.s. Trade Restraints--recommendations for Economic Revitalization in Indian Country 44 Tulsa Law Review 383 (Winter 2008) Tribal commerce created the current highways that stretch from coast-to-coast in North America today. The roads that are traveled by semi-trucks full of cargo, grocery produce, and all manner of commercial goods are on top of the ancient trade routes Natives have traveled for centuries. Unfortunately, the history and sophistication of Native... 2008
Alex Tallchief Skibine TRIBAL SOVEREIGN INTERESTS BEYOND THE RESERVATION BORDERS 12 Lewis & Clark Law Review 1003 (Winter 2008) After describing how, from a global perspective, traditional concepts of state sovereignty have moved away from being uniquely tied to exclusive control of territories, this Article shows how the United States concept of tribal sovereignty is also no longer tied to territorial sovereignty. This is evident from the fact that, mostly through Supreme... 2008
Matthew Duchesne TRIBAL TRUSTEES AND THE USE OF RECOVERED NATURAL RESOURCE DAMAGES UNDER CERCLA 48 Natural Resources Journal 353 (Spring, 2008) The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or the Act) authorizes certain federal, state, and tribal officials to act as trustees on behalf of the public and recover damages for injuries to publicly owned, managed, or regulated natural resources. The Act explicitly limits the uses to which federal and state... 2008
Angelique A. EagleWoman , Wambdi A. Wastewin Tribal Values of Taxation Within the Tribalist Economic Theory 18-FALL Kansas Journal of Law & Public Policy Pol'y 1 (Fall 2008) Tribal Nations in mid-North America currently exercise their inherent rights as self-governing sovereign peoples by imposing taxes within tribal territories. Taxation is one of the powers of government that flows from sovereign status. The success of tribal taxation has been curtailed by intrusion of the United States federal government and its... 2008
Angelique A. EagleWoman , Wambdi A. Wastewin TRIBAL VALUES OF TAXATION WITHIN THE TRIBALIST ECONOMIC THEORY 18-FALL Kansas Journal of Law & Public Policy 1 (Fall 2008) Tribal Nations in mid-North America currently exercise their inherent rights as self-governing sovereign peoples by imposing taxes within tribal territories. Taxation is one of the powers of government that flows from sovereign status. The success of tribal taxation has been curtailed by intrusion of the United States federal government and its... 2008
Mary Christina Wood , Zachary Welcker Tribes as Trustees Again (Part I): the Emerging Tribal Role in the Conservation Trust Movement 32 Harvard Environmental Law Review 373 (2008) History suggests that if mankind is to survive, the next five hundred years must be rooted in the pre-Columbian ethic of the Native American. The second American quincentenary belongs to the Indian. The continuation of the past, the conqueror's exploitation of the earth, can mean only one thing. No one, Indian or non-Indian, will survive. --Rennard... 2008
Mary Christina Wood , Matthew O'Brien Tribes as Trustees Again (Part Ii): Evaluating Four Models of Tribal Participation in the Conservation Trust Movement 27 Stanford Environmental Law Journal 477 (June, 2008) I. Introduction. 479 II. The Mechanics of Private Conservation. 481 A. Fee Ownership Versus Conservation Easement. 481 B. Funding Concerns and Financial Incentives. 482 1. Financial Arrangements of Transfer. 482 2. Costs Associated with A Conservation Transaction. 483 3. Tax Incentives For Private Conservation. 484 C. The Holder Issue. 486 D. The... 2008
Mary Christina Wood , Matthew O'Brien TRIBES AS TRUSTEES AGAIN (PART II): EVALUATING FOUR MODELS OF TRIBAL PARTICIPATION IN THE CONSERVATION TRUST MOVEMENT 27 Stanford Environmental Law Journal 477 (June, 2008) I. Introduction. 479 II. The Mechanics of Private Conservation. 481 A. Fee Ownership Versus Conservation Easement. 481 B. Funding Concerns and Financial Incentives. 482 1. Financial Arrangements of Transfer. 482 2. Costs Associated with A Conservation Transaction. 483 3. Tax Incentives For Private Conservation. 484 C. The Holder Issue. 486 D. The... 2008
Carlo Osi Understanding Indigenous Dispute Resolution Processes and Western Alternative Dispute Resolution Cultivating Culturally Appropriate Methods in Lieu of Litigation 10 Cardozo Journal of Conflict Resolution 163 (Fall 2008) 1. Introduction. 164 1.1 Focus of the Paper. 167 2. Indigenous Communities: Weak, Isolated, Vulnerable. 169 2.1 Right to Participate. 175 2.2 Adherence to Indigenously Appropriate Dispute Resolution. 177 3. Placing the International Problem in Context. 178 3.1 Cultural Appropriation and Indigeneity. 178 3.2 TRIPS and CBD. 180 3.3 Patents and... 2008
Kathryn Nalani Setsuko Hong Understanding Native Hawaiian Rights: Mistakes and Consequences of Rice V. Cayetano 15 Asian American Law Journal L.J. 9 (May, 2008) This paper comprehensively reviews the Supreme Court case Rice v. Cayetano and its implications for Native Hawaiian legal rights. The Rice opinion, issued in 2000, continues to affect the Native Hawaiian community today. The issue of Native Hawaiian legal rights remains controversial, as demonstrated by recent suits challenging programs that... 2008
Benjamin J. Cordiano UNSPOKEN ASSUMPTIONS: EXAMINING TRIBAL JURISDICTION OVER NONMEMBERS NEARLY TWO DECADES AFTER DURO V. REINA 41 Connecticut Law Review 265 (November, 2008) In a series of decisions beginning in 1978 with Oliphant v. Suquamish Indian Tribe, the Supreme Court has stripped Indian tribes of the ability to prosecute all criminal offenders within the borders of their territory. A decade after holding that non-Indians were not subject to the criminal jurisdiction of Indian tribes, the Supreme Court, in Duro... 2008
Lillian Aponte Miranda Uploading the Local: Assessing the Contemporary Relationship Between Indigenous Peoples' Land Tenure Systems and International Human Rights Law Regarding the Allocation of Traditional Lands and Resources in Latin America 10 Oregon Review of International Law 419 (2008) I. Indigenous Peoples as Subjects of International Law. 423 II. Indigenous Peoples' Contemporary Claims to Lands and Resources Under Human Rights Law. 428 III. Indigenous Peoples' Litigation Regarding Their Traditional Lands and Resources Before the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. 433 IV. The... 2008
Gavin Clarkson Wall Street Indians: Information Asymmetry and Barriers to Tribal Capital Market Access 12 Lewis & Clark Law Review 943 (Winter 2008) Wall Street in New York City may be considered the financial center of the world, but the original wall on Wall Street was built to keep the Indians out. Unfortunately Wall Street has remained true to its origins and has excluded Indian tribes from equal participation in the capital markets, although Wall Street has had some help in this regard.... 2008
Gabriel Martinez , L. Lisa Sandoval Winner, Best Appellate Brief in the 2007 Native American Law Student Association Moot Court Competition 32 American Indian Law Review 293 (2007-2008) 1. The land claim issues before the Court are: a. Whether the Makota Nation have recognized title to land they have lived on for centuries in the Eagle Wing area of the Yellowstone National Park, and b. Whether the Court should give weight, and to what extent it should do so, to customary international law, in particular the Organization of... 2008
Angela R. Riley (TRIBAL) SOVEREIGNTY AND ILLIBERALISM 95 California Law Review 799 (June, 2007) Liberalism struggles with an ancient paradox. That is, it must navigate the sometimes treacherous course between individual autonomy and pluralism's accommodation. In this Article, I argue that this philosophical tension has manifested in very concrete intrusions on American Indians' tribal sovereignty. On the one hand, tribal sovereignty guards... 2007
William F. Bacon , Shoshone Bannock Tribe 20 Questions about Indian Law 50-MAY Advocate 17 (May, 2007) The practice of American Indian law invites many questions from both lawyers and non-lawyers alike. This article lists some of the questions asked most frequently over the years, together with brief answers to those questions. Generally, yes. There are exceptions, however, where (a) the federal law touches upon the exclusive right of... 2007
William P. Zuger A BAEDEKER TO THE TRIBAL COURT 83 North Dakota Law Review 55 (2007) When I started work as a temporary judge at the Standing Rock Sioux Indian Reservation, I had set foot on the reservation perhaps a half dozen times, only one of which, my employment interview with Standing Rock Tribal Chairman Ron His Horse Is Thunder four days earlier, was other than a visit to the Prairie Knights Casino. Since law school, I had... 2007
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