Gregory Ablavsky Sovereign Metaphors in Indian Law 80 Montana Law Review 11 (Winter, 2019) The status of Native nations under federal law, the Supreme Court has repeatedly stated, is unique. The condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence, Chief Justice Marshall announced in Cherokee Nation v. Georgia; it was marked by peculiar and cardinal distinctions which... 2019
Kathryn R.L. Rand, Steven Andrew Light Sports Betting and Indian Gaming: Should Tribal Casinos Get in the Game? 9 UNLV Gaming Law Journal 55 (Spring, 2019) When the U.S. Supreme Court decided in Murphy v. National Collegiate Athletic Association (NCAA) that the federal Professional and Amateur Sports Protection Act (PASPA) was unconstitutional, the Court effectively lifted the widespread ban on legalized sports betting in the United States. All states--and presumably, all eligible federally... 2019
E. Barrett Ristroph Still Melting: How Climate Change and Subsistence Laws Constrain Alaska Native Village Adaptation 30 Colorado Natural Resources, Energy & Environmental Law Review 245 (Summer, 2019) Subsistence hunting and fishing practices are essential to maintain the physical, economic, and cultural continuity of Alaska Native Villages (ANVs). The combination of rapid climate change, laws that restrict hunting and fishing, and systems for participating in decision-making about hunting and fishing all limit the ways in which ANV residents... 2019
Daniel C. Kennedy Strange Bedfellows: Native American Tribes, Big Pharma, and the Legitimacy of Their Alliance 68 Duke Law Journal 1433 (April, 2019) Lost in the cacophony surrounding the debate about high drug prices is the fundamental principle that pharmaceutical innovation will not occur without the prospect of outsized returns enabled through market exclusivity. Biopharmaceutical patents are currently under siege, subject to challenge both in inter partes review (IPR) proceedings and in... 2019
Morad Elsana Systematic Indigenous Peoples' Land Dispossession: the Bedouin in Israel 15 South Carolina Journal of International Law & Business Bus. 1 (Spring, 2019) In 2007, the Israeli government unilaterally decided to settle the Bedouin land dispute and dispose of their land claims. The state ordered Bedouin land claims to be promptly adjudicated in court. The court, however, followed a forty-year-old precedent and rejected all Bedouin claims. In reaction, as part of the Bedouin's attempts to defend their... 2019
Milo Colton Texas Indian Holocaust and Survival: Mcallen Grace Brethren Church V. Salazar 21 Scholar: St. Mary's Law Review on Race and Social Justice 51 (2019) When the first Europeans entered the land that would one day be called Texas, they found a place that contained more Indian tribes than any other would-be American state at the time. At the turn of the twentieth century, the federal government documented that American Indians in Texas were nearly extinct, decreasing in number from 708 people in... 2019
Mithi Mukherjee The "Right to Wage War" Against Empire: Anticolonialism and the Challenge to International Law in the Indian National Army Trial of 1945 44 Law and Social Inquiry 420 (May, 2019) This Article treats the Indian National Army Trial of 1945 as a key moment in the elaboration of an anticolonial critique of international law in India. The trial was actually a court-martial of three Indian officers by the British colonial government on charges of high treason for defecting from the British Indian Army, joining up with Indian... 2019
James A. Keedy The History of Indian Legal Services 98-AUG Michigan Bar Journal 26 (August, 2019) Since 1966, Indian Legal Services programs have shaped the development of Indian law in state and federal courts and the advancement of tribal justice systems using limited resources. These programs primarily provide civil legal assistance to members of Indian tribes, focusing on the special and complex legal problems that arise in Indian country.... 2019
María Eugenia Recio The Impact of Climate Change Mitigation on Indigenous and Forest Communities: International, National and Local Law Perspectives on Redd+, by Maureen F. Tehan, Lee C. Godden, Margaret A. Young and Kirsty A. Gover Cambridge, Uk: Cambridge University Press, 13 Carbon & Climate Law Review 150 (2019) The two books under review focus on legal developments related to REDD+. Put simply, REDD+ is an initiative developed under the United Nations Framework Convention on Climate Change (UNFCCC) to protect standing forests in the developing world. Its ultimate goal is reducing global carbon emissions from deforestation and land use changes to combat... 2019
Matthew H. Birkhold The Indigenous Mcclain Doctrine: a New Legal Tool to Protect Cultural Patrimony and the Right to Self-determination 97 Washington University Law Review 113 (2019) In December 2010, the United States endorsed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which obligates the United States to respect indigenous self-determination and protect Native American cultural objects. Yet, nearly a decade later, the United States has made little progress to meet these commitments, resulting... 2019
Robert T. Anderson The Katie John Litigation: a Continuing Search for Alaska Native Fishing Rights after Ancsa 51 Arizona State Law Journal 845 (Fall, 2019) Introduction. 846 I. Alaska Native Property Rights up to 1971. 849 II. The Alaska Native Claims Settlement Act. 857 III. ANILCA's Cooperative Federalism Regime and Its Failure: The Katie John Trilogy Protects Subsistence Fishing. 861 IV. Sturgeon v. Frost and Subsistence Fishing. 868 A. Enter the Moose Hunter--On a Hovercraft.. 869 B. The Continued... 2019
Kaitlyn Schaeffer The Need for Federal Legislation to Address Native Voter Suppression 43 New York University Review of Law and Social Change 707 (2019) Native Americans, like other minority groups, continue to face racially-motivated disenfranchisement efforts. Watershed victories for equal access to the ballot--such as the passage of the Fifteenth and Nineteenth Amendments--did not affect Native Americans because, by and large, they were not considered American citizens until the Indian... 2019
Andrea M. Seielstad The Need for More Exacting Assessment of the Individual Rights and Sovereign Interests at Stake in Federal Court Interpretation of "Detention" under the Indian Civil Rights Act's Remedy of Habeas Corpus 14 Tennessee Journal of Law and Policy 63 (Summer, 2019) Pursuant to its federally-recognized plenary power over Indian affairs, Congress enacted the Indian Civil Rights Act in 1968 as a major civil rights initiative aimed at filling the gap in civil rights enforcement within tribal communities. Its aim was to bind tribes, who otherwise are not accountable to the protections of the United States... 2019
Matt Irby The Opioid Crisis in Indian Country: the Impact of Tribal Jurisdiction and the Role of the Exhaustion Doctrine 43 American Indian Law Review 353 (2019) Opioids have been a significant part of pain treatment in the United States for over 150 years. Stories of overdose from the early nineteenth century are almost indistinguishable from stories today. For example, Ella Henderson was a thirty-three-year-old hotel owner in high society Seattle, Washington. Following the death of her beloved father, Ms.... 2019
Danielle J. Mayberry The Origins and Evolution of the Indian Child Welfare Act 14 Judicial Notice 34 (2019) Since first contact, federal Indian policy and law has impacted American Indian children and families, targeting them as a means to assimilate Indian Nations into American society. In the beginning, Indian children were targeted for military and diplomatic purposes in order to undermine tribal resistance. This assimilation policy later shifted... 2019
Francisco Olea The Professional and Amateur Sports Protection Act: How its Invalidation Will Impact Indian Gaming's Legal and Regulatory Framework 9 UNLV Gaming Law Journal 35 (Spring, 2019) The Professional and Amateur Sports Protection Act (PASPA) was a Federal statute enacted in 1992 that effectively outlawed sports gambling in the United States, with the exception of states such as Nevada, Delaware, and Oregon. In 2011, the State of New Jersey amended its state constitution and enacted a law that would authorize certain... 2019
Adam Crepelle The Reservation Water Crisis: American Indians and Third World Water Conditions 32 Tulane Environmental Law Journal 157 (Summer, 2019) I. Introduction. 157 II. Tribal Sovereignty and Tribal Water Rights. 159 III. Tribal Water Protection Powers. 164 V. The Sorry State of Water in Indian Country. 169 VI. Solutions. 175 A. The Trust Relationship and Water Rights. 175 B. International Law. 182 VII. Conclusion. 187 2019
Matthew L.M. Fletcher The Restatement of the Law for American Indians: the Process and Why it Matters 80 Montana Law Review Rev. 1 (Winter, 2019) I'm here to talk about the Restatement of Indian Law or, as it is called currently, the Restatement of the Law of American Indians. My lovely wife, Wenona Singel, and I are co-Reporters along with a good friend of ours named Kaighn Smith. This project has been ongoing since at least 2012, so it's been going on for a long time and we're a few years... 2019
Elia Mwanga The Role of By-laws in Enhancing the Integration of Indigenous Knowledge 13 Carbon & Climate Law Review 19 (2019) To address the problem of climate change, all countries must join together in implementing climate change mitigation and adaptation strategies. Further measures, including community-based projects, should be integrated into climate change responses. Studies show that indigenous knowledge can also contribute significantly to climate change... 2019
Ashley A. Glick The Wild West Re-lived: Oil Pipelines Threaten Native American Tribal Lands 30 Villanova Environmental Law Journal 105 (2019) We do not inherit the earth from our ancestors[;] we borrow it from our children. Since the inception of designated reservations, the land within the reservation boundaries has served as a point of contention between the Native Americans and the federal government. In 1851, the United States government attempted to negotiate peace with the Native... 2019
Ashley A. Glick THE WILD WEST RE-LIVED: OIL PIPELINES THREATEN NATIVE AMERICAN TRIBAL LANDS 30 Villanova Environmental Law Journal 105 (2019) We do not inherit the earth from our ancestors[;] we borrow it from our children. Since the inception of designated reservations, the land within the reservation boundaries has served as a point of contention between the Native Americans and the federal government. In 1851, the United States government attempted to negotiate peace with the Native... 2019
Sarah Crawford The Year of the Native Voter 55-APR Arizona Attorney 44 (April, 2019) 2018 proved to be the year of the Native voter and Native candidate. Despite controversial voter identification laws in North Dakota, tribal reservations had record-breaking turnouts across the state for a midterm election. Representative Deb Haaland and Representative Sharice Davids were sworn in as the first Native women elected to the U.S.... 2019
Lori V. Quigley, Ph.D. Thomas Indian School 14 Judicial Notice 48 (2019) In the late 1800s, the United States created special boarding schools in locations all over the United States, with the purpose of civilizing American Indian youth. It was an educational experiment, one that the government hoped would change the traditions and customs of American Indians. In the past several decades, research into these boarding... 2019
Jessica A. Shoemaker Transforming Property: Reclaiming Indigenous Land Tenures 107 California Law Review 1531 (October, 2019) This Article challenges existing narratives about the future of American Indian land tenure. The current highly-federalized system for reservation property is deeply problematic. In particular, the trust status of many reservation lands is expensive, bureaucratic, oppressive, and linked to persistent poverty in many reservation communities. Yet,... 2019
Jason Zenor Tribal (De)termination? Commercial Speech, Native American Imagery and Cultural Sovereignty 48 Southwestern Law Review 81 (2019) The U.S. Supreme Court ruled in Matal v. Tam that the disparagement clause in the Lanham Act was unconstitutional. This case was just another in a line of commercial speech cases to expand the rights of corporations. This ruling also further limits the legal options for tribes to protect their cultural identity from exploitation. In response, this... 2019
Rebecca Tsosie Tribal Data Governance and Informational Privacy: Constructing "Indigenous Data Sovereignty" 80 Montana Law Review 229 (Summer, 2019) There is a growing movement among Indigenous peoples to assert a right to Indigenous data sovereignty, and yet, the term data sovereignty is not widely understood. What does it mean to control the collection, use and management of information in an era of Big Data, in which digital technology transforms knowledge into electronic form, to be... 2019
Rebecca Tsosie TRIBAL DATA GOVERNANCE AND INFORMATIONAL PRIVACY: CONSTRUCTING "INDIGENOUS DATA SOVEREIGNTY" 80 Montana Law Review 229 (Summer, 2019) There is a growing movement among Indigenous peoples to assert a right to Indigenous data sovereignty, and yet, the term data sovereignty is not widely understood. What does it mean to control the collection, use and management of information in an era of Big Data, in which digital technology transforms knowledge into electronic form, to be... 2019
Jan Bissett , Margi Heinen Tribal Law Resources and American Indian Law Research Guides 98-AUG Michigan Bar Journal 52 (August, 2019) Researching American Indian legal issues may encompass federal, state, or tribal jurisdictions. Researchers often think of federal resources-- legislation, treaties, cases, statutes, agency rulings, and litigation as well as regulations--as a starting point. But is your issue governed by this law, or is it an entirely different jurisdiction? The... 2019
John Hayden Dossett TRIBAL NATIONS AND CONGRESS'S POWER TO DEFINE OFFENCES AGAINST THE LAW OF NATIONS 80 Montana Law Review 41 (Winter, 2019) C1-2Contents I. Introduction. 41 II. The Concern with Plenary Power. 46 III. Tribal Nations Considered Nations by the Framers and Throughout United States History. 49 IV. Offences Against the Law of Nations and Tribal Nationhood in the United States. 56 V. Scope of the Offences Clause Includes Civil Remedies as well as Criminal Punishment. 59 VI.... 2019
Robert Sroka Two Models for Indigenous Land Development Outside of Vancouver, British Columbia 12 Albany Government Law Review 255 (2018-2019) In addition to being a primary sphere in which law has strong potential to positively impact socio-economic development, land rights as they pertain to Indigenous peoples are a frequent flashpoint of conflict throughout the developing world. Yet many similar conflicts exist in highly developed countries that also happen to be former colonies. While... 2019
Danielle Delaney Under Coyote's Mask: Environmental Law, Indigenous Identity, and #Nodapl 24 Michigan Journal of Race and Law 299 (Spring, 2019) This Article studies the relationship between the three main lawsuits filed by the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe, and the Yankton Sioux Tribe against the Dakota Access Pipeline (DaPL) and the mass protests launched from the Sacred Stone and Oceti Sakowin protest camps. The use of environmental law as the primary legal... 2019
Frank Pommersheim United States V. Gillette: a Tiny Prairie Casenote Opening a Window on the Enveloping Fog Obscuring the Indian Civil Rights Act of 1968 80 Montana Law Review 121 (Winter, 2019) United States v. Gillette is one of the first reported cases on the new post-United States v. Bryant road. As of yet, there is no reliable (legal) GPS to point the way. This tiny prairie casenote is not meant to focus on the answers, but rather to clarify the questions and to widen the discussion as the journey continues. On January 31, 2017,... 2019
  United States-crow Treaty--federal Indian Law-- Indian Plenary Power Doctrine--herrera V. Wyoming 133 Harvard Law Review 402 (November, 2019) As the United States expanded and its territories received statehood, questions naturally emerged about how the nature of relationships between the territories and Indian tribes on those lands would change. These questions were complicated by a changing perspective on the inherent sovereignty of Indian Tribes and how that informed what the courts... 2019
Jason Mitchell UNOCCUPIED: HOW A SINGLE WORD AFFECTS WYOMING'S ABILITY TO REGULATE TRIBAL HUNTING THROUGH A FEDERAL TREATY; HERRERA v. WYOMING 19 Wyoming Law Review 271 (2019) I. Introduction. 272 II. Background. 274 A. The Second Treaty of Fort Laramie. 274 B. Precedent Implicated in the Treaty's Interpretation. 275 1. Ward v. Race Horse. 275 2. Crow Tribe of Indians v. Repsis. 277 3. Minnesota v. Mille Lacs Band of Chippewa Indians. 278 III. Wyoming State District Court Opinion. 280 A. Procedural Posture. 280 B. Issue... 2019
Luhui Whitebear Vawa Reauthorization of 2013 and the Continued Legacy of Violence Against Indigenous Women: a Critical Outsider Jurisprudence Perspective 9 University of Miami Race & Social Justice Law Review 75 (Spring, 2019) A nation is not conquered until the hearts of its women are on the ground. - Cheyenne Proverb They trespass her body like they trespass this land . - Thomas Ryan Red Corn (To the Ingenious Woman by the 1491s) I. INTRODUCTION. 76 II. CONNECTION OF VIOLENCE TO INDIGENOUS LANDS AND BODY. 77 III. BACKGROUND STATISTICS. 81 IV. VAWA REAUTHORIZATION... 2019
Judith M. Stinson WHEN TRIBAL DISENROLLMENT BECOMES CRUEL AND UNUSUAL 97 Nebraska Law Review 820 (2019) C1-2TABLE OF CONTENTS I. Introduction. 821 II. The Eighth Amendment's Prohibition on Cruel and Unusual Punishment. 824 III. The Prohibition on Cruel and Unusual Punishment Applies to Tribes via the Indian Civil Rights Act. 832 IV. Tribal Punishment. 836 A. Historical Methods of Addressing Criminal Conduct. 837 B. Modern Methods of Addressing... 2019
Chelsea Minuche, Claire Postman Winner, Best Appellate Brief in the 2019 Native American Law Student Association Moot Court Competition 43 American Indian Law Review 489 (2019) 1. Whether Petitioner, a citizen of the Amantonka Nation, is Indian and therefore not subject to special domestic violence criminal jurisdiction under the Violence Against Women Act of 2013? 2. Whether (a) Petitioner's court-appointed attorney, a member in good standing of the Amantonka Nation Bar, satisfies all legal requirements for... 2019
Allison Elder "INDIAN" AS A POLITICAL CLASSIFICATION: READING THE TRIBE BACK INTO THE INDIAN CHILD WELFARE ACT 13 Northwestern Journal of Law & Social Policy 410 (Spring, 2018) In the summer of 2018, the Ninth Circuit will consider an appeal from the dismissal of a constitutional challenge to the Indian Child Welfare Act (ICWA). Brought by a conservative think-tank, this case frames the ICWA as race-based legislation, violating equal protection by depriving Indian children of the same procedures as non-Indian children in... 2018
Gregory Ablavsky "WITH THE INDIAN TRIBES": RACE, CITIZENSHIP, AND ORIGINAL CONSTITUTIONAL MEANINGS 70 Stanford Law Review 1025 (April, 2018) Abstract. Under black-letter law declared in the U.S. Supreme Court's decision in Morton v. Mancari, federal classifications of individuals as Indian based on membership in a federally recognized tribe rely on a political, not a racial, distinction, and so are generally subject only to rational basis review. But the Court recently questioned this... 2018
Nisha Bhakta A Clash Between Culture and Law: a Comparative Look at the Conflict Between Quiet Title Actions in Hawaii, the Kuleana Act of 1850, and the Displacement of Indigenous People 49 California Western International Law Journal 137 (Fall, 2018) C1-2Table of Contents Introduction. 137 I. Land Law and Indigenous Rights. 139 A. History of Hawaiian Land Law. 139 1. Hawaiian Legislation. 140 2. Homelessness in Hawaii. 143 B. History of Australian Land Law. 147 1. Australian Legislation. 148 2. Homelessness in Australia. 151 a. Physical Homelessness. 152 b. Spiritual Homelessness. 154 II.... 2018
Malini Vijaykumar A Crisis of Conscience: Miscarriages of Justice and Indigenous Defendants in Canada 51 U.B.C. Law Review 159 (January, 2018) The criminal justice system failed Donald Marshall, Jr. at virtually every turn from his arrest and wrongful conviction for murder in 1971 up to, and even beyond, his acquittal by the Court of Appeal in 1983. The tragedy of the failure is compounded by evidence that this miscarriage of justice could--and should--have been prevented, or at least... 2018
Keri Vacanti Brondo, University of Memphis A Dot on a Map: Cartographies of Erasure in Garifuna Territory 41 PoLAR: Political and Legal Anthropology Review 185 (November, 2018) This article explores the complexities of territorial dispossession in a post-Washington-Consensus global development policy context. In particular, it explores a contemporary development paradox in Honduras: the transnational recognition of the rights of indigenous people alongside massive land dispossession of the Afro-Indigenous Garifuna in the... 2018
Camille Fenton A Jury of Someone Else's Peers: the Severe Underrepresentation of Native Americans from the Western Division of South Dakota's Jury-selection Process 24 Texas Journal on Civil Liberties & Civil Rights 119 (Fall, 2018) Native American defendants hailed into federal court in the Western Division of the United States District Court for South Dakota routinely face a venire of potential jurors that fails to include a single Native American. As such, many of them decline to exercise their constitutional right to a jury trial. This unrepresentative venire is a direct... 2018
William H. Henning, Susan M. Woodrow, Marek Dubovec A Proposal for a National Tribally Owned Lien Filing System to Support Access to Capital in Indian Country 18 Wyoming Law Review 475 (2018) I. Introduction. 476 II. What is Secured Transactions Law and Why Is It Important to Tribal Economic Development?. 480 A. Types of Transactions. 480 B. Current Status of Secured Transactions Laws in the Various States of the U.S.. 482 C. International Developments and Their Relevance for Indian Country. 483 D. The Model Tribal Secured Transactions... 2018
Bhavani Raman, Department of Historical and Cultural Studies, University of Toronto A Sea of Debt: Law and Economic Life in the Western Indian Ocean 1780-1950. By Fahad Bishara. Cambridge: Cambridge University Press, 2017 52 Law and Society Review 1098 (December, 2018) Fahad Bishara's A Sea of Debt is an extraordinary sociolegal history of economic life that stands out for its imagination and signal contributions to the study of law, mobility, and global capital. Set across 170 years of western Indian Ocean commerce, the book reconceptualizes waraqas (letters of longstanding obligation that bound Indian Ocean... 2018
Grant Christensen A View from American Courts: the Year in Indian Law 2017 41 Seattle University Law Review 805 (Spring, 2018) Introduction. 807 I. Some Statistics. 809 II. The Supreme Court. 811 A. The 2016-2017 Term. 811 Application of Lewis v. Clarke in 2017. 813 B. The 2017-2018 Term. 816 1. Cases Docketed for the 2017-2018 Term. 816 2. Dissent from Denial of Certiorari. 818 III. Important Developments in 2017. 819 A. Civil Jurisdiction Over Nonmembers: Developments in... 2018
Robert C. Batson Addressing the Opioid Crisis in Indian Country with a Parens Patriae Action in Tribal Court 11 Albany Government Law Review 106 (2017-2018) According to the Centers for Disease Control and Prevention (CDC), the United States is in the midst of an opioid overdose epidemic. The CDC defines opioids as: Natural or synthetic chemicals that interact with opioid receptors on nerve cells in the body and brain, and reduce the intensity of pain signals and feelings of pain. This class of drugs... 2018
Kevin K. Washburn AGENCY PRAGMATISM IN ADDRESSING LAW'S FAILURE: THE CURIOUS CASE OF FEDERAL "DEEMED APPROVALS" OF TRIBAL-STATE GAMING COMPACTS 52 University of Michigan Journal of Law Reform 49 (Fall, 2018) In the Indian Gaming Regulatory Act of 1988 (IGRA), Congress imposed a decision-forcing mechanism on the Secretary of the Interior related to tribal-state compacts for Indian gaming. Congress authorized the Secretary to review such compacts and approve or disapprove each compact within forty-five days of submission. Under an unusual provision of... 2018
Alyssa Lankford Agua Caliente Band of Cahuilla Indians V. Coachella Valley Water District: a Tribe's Successful Fight for Federally Reserved Water Rights 43 American Indian Law Review 203 (2018) When the well's dry, we know the worth of water. --Benjamin Franklin The Ninth Circuit began its landmark opinion in Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District with this quote, not merely for stylistic appeal, but to highlight the importance of the issue discussed in the case: the allocation of water rights. The world... 2018
William L. Iggiagruk Hensley , John Sky Starkey Alaska Native Perspectives on the Alaska Constitution 35 Alaska Law Review 129 (December, 2018) Part I is adapted from a panel discussion by Mr. Hensley on Friday, October 11, 2018 We, as the indigenous people who occupied this space now called Alaska for over ten thousand years, were essentially in the twilight zone of the minds of those who created the Alaska Constitution. I have looked at some of the videos where the participants of the... 2018
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