Lianne T. Chung , Nicholas Ernst Winner, Best Appellate Brief in the 2018 Native American Law Student Association Moot Court Competition 42 American Indian Law Review 457 (2018) I. Whether the Yuma Indian Nation (the Nation or YIN) courts have jurisdiction over Thomas Smith and Carol Smith (collectively, the Smiths), non-members of the Nation, where such jurisdiction is beyond protecting the Nation's self-government and control over internal relations, or in the alternative, whether the trial court should stay the... 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
Lawrence R. Baca A Recipe from the Diversity Cookbook: 'First You Hire One Indian' 64-FEB Federal Lawyer 54 (January/February, 2017) The concept of diversity encompasses acceptance and respect. It means understanding that each individual is unique and recognizing our individual differences. These can be along the dimensions of race, ethnicity, gender, sexual orientation, socioeconomic status, age, physical abilities, religious beliefs, political beliefs, or other ideologies. It... 2017
Jenadee Nanini A Tribe's Future: Native American Youth and the Right to Counsel in Juvenile Justice Systems 9 Georgetown Journal of Law & Modern Critical Race Perspectives 77 (Spring, 2017) Native American youth face a complex dynamic within the juvenile justice system. Native American juveniles are potentially subject to three jurisdictions: tribal, state, and federal--with the possibility of removal to adult court in any of these three jurisdictions. Interestingly, Native American youth also face more barriers and greater... 2017
Nicholas M. Ravotti Access to Energy in Indian Country: the Difficulties of Self-determination in Renewable Energy Development 41 American Indian Law Review 279 (2017) By many measures, Indian tribal members live at a significant disadvantage as compared to non-Indian citizens when it comes to poverty, food security, and prevalence of violent crime. One measure of disadvantage that is not frequently discussed is that many Indian tribal members living in Indian Country do not have ready access to electrical... 2017
Gia Austin Agua Caliente Band of Cahuilla Indians V. Coachella Valley Water Dist., 849 F.3d 1262 (9th Cir. 2017) 20 University of Denver Water Law Review 447 (Spring, 2017) (holding: (i) the United States impliedly reserved a water right when establishing the Agua Caliente Reservation; (ii) the Tribe's implied federal reserved water right extended to groundwater; and (iii) the Tribe's state water entitlements to groundwater did not disqualify its implied federal reserved water right). The Agua Caliente Band of... 2017
Catherine M. Redlingshafer An Avoidable Conundrum: How American Indian Legislation Unnecessarily Forces Tribal Governments to Choose Between Cultural Preservation and Women's Vindication 93 Notre Dame Law Review 393 (November, 2017) Gender violence in American Indian communities is a serious, complex issue due to a myriad of legal and cultural barriers. Today, rates of rape and other sexual assaults are higher for American Indian women than any other demographic in the country. In fact, a Department of Justice report found that the assault rates for American Indian and Alaska... 2017
Raymond J. Fadel An Indian by Any Other Name: Cross-border Affirmative Action 92 New York University Law Review 1107 (October, 2017) While Indian tribes bordering the United States and Canada may share the same culture, the same ancestry, and even the same name, a descendant of common heritage may not be recognized as Indian in the United States, and thus not eligible to receive federal benefits. The federal government has the power to recognize an Indian tribe's sovereignty... 2017
Hamar Foster Another Good Thing: Ross River Dena Council V Canada in the Yukon Court of Appeal, Or: Indigenous Title, "Presentism" in Law and History, and a Judge Begbie Puzzle Revisited 50 U.B.C. Law Review 293 (June, 2017) The largest difficulty in legal history is precisely that we look at past evidence in the light of later assumptions, including our own assumptions about the nature and working of law itself. SFC Milsom, A Natural History of the Common Law First, I should explain my title. In 2010 I published an essay criticizing a government argument in... 2017
Kristopher A. Reed Back to the Future: How the Holding of Shelby County V. Holder Has Been a Reality for South Dakota Native Americans since 1975 62 South Dakota Law Review 143 (2017) In Shelby County v. Holder the United States Supreme Court held that Section 4(b) of the Voting Rights Act was unconstitutional. The Court's holding rendered Section 5 of the Voting Rights Act toothless, causing some to fear voting rights would regress to the days of Jim Crow. This fear of a future without Section 5 is nothing new for South Dakota... 2017
Mar Campins Eritja Bio-prospecting in the Arctic: an Overview of the Interaction Between the Rights of Indigenous Peoples and Access and Benefit Sharing 44 Boston College Environmental Affairs Law Review 223 (2017) The exploration and exploitation of marine genetic resources for commercial purposes is growing at an unprecedented rate in the Arctic region. Currently, there is no explicit legal framework that governs the participation of Arctic indigenous peoples in this industry or requires that the benefits derived from the scientific use of marine... 2017
Sarah Deer Bystander No More? Improving the Federal Response to Sexual Violence in Indian Country 2017 Utah Law Review 771 (2017) If the Tribal Law and Order Act had existed 16 years ago, my story would be very different .. [After I was sexually assaulted in 1994] I received medical treatment at the Indian Health Services hospital but no doctors talked to me about the rape. I had to wait all night for someone to collect DNA. Tribal police suspected a local man but no federal... 2017
Gretel Lee Casting a Wide Net: Why it Is Incumbent upon the Environmental Protection Agency to Expand the Scope of its Cost-benefit Analysis to Include Native American Populations and Cultural Fishing Practices in the Aftermath of Michigan V. Epa 35 Law & Inequality: A Journal of Theory and Practice 393 (Summer, 2017) I think it is incredibly presumptuous and elitist for political scientists to conclude that the American people's cultural values in fact are not ones that lend themselves to a cost-benefit analysis and to presume that [the American people] would change their cultural values if in fact they were aware of the cost-benefit analysis. --Joseph Biden... 2017
  Chapter 19 • Native American Resources 2017 ABA Environment, Energy, and Resources Law: The Year in Review 208 (2017) This years' major developments tended to involve questions of tribal jurisdiction and the nuances of sovereign immunity, although there were significant developments in long-running cases concerning treaty rights covering fishing, water and land use issues. On April 25, 2017, the U.S. Supreme Court held that a suit brought against a Mohegan Tribal... 2017
Ryan Wilson Closing Time: Removing the State of Oklahoma from Alcohol Regulation in Indian Country 69 Oklahoma Law Review 485 (Spring, 2017) The United States Constitution contemplates three types of sovereigns existing within the country's borders: the federal government, the states, and the Indian tribes. As to the relationship between the federal government and the tribes, the Supreme Court determined in 1831 that tribes constitute domestic dependent nations, likening their... 2017
Jessica A. Shoemaker Complexity's Shadow: American Indian Property, Sovereignty, and the Future 115 Michigan Law Review 487 (February, 2017) This Article offers a new perspective on the challenges of the modern American Indian land tenure system. While some property theorists have renewed focus on isolated aspects of Indian land tenure, including the historic inequities of colonial takings of Indian lands, this Article argues that the complexity of today's federally imposed reservation... 2017
Adam Crepelle Concealed Carry to Reduce Sexual Violence Against American Indian Women 26-SPG Kansas Journal of Law & Public Policy 236 (Spring, 2017) Although crime rates in the United States have fallen since the 1990s, Indian reservation crime rates have increased over the same time period. The violent victimization rate for Indians is twice that of any other race, and the crime rate on some reservations is 20 times the national average. Indian crime victimization statistics are outrageous in... 2017
T. Michael Andrews Continuing to Work for Indian Country in the 115th Congress 41 American Indian Law Review 361 (2017) Today, much work is still ahead of us to assist with the needs of American Indians and Alaska Natives. Based upon both treaty and federal law, the United States shares a unique government-to-government relationship with tribes and has a trust responsibility for Native communities. The social and economic problems that plague Indian Country have... 2017
Stefan Kirchner Cross-border Forms of Animal Use by Indigenous Peoples 111 AJIL Unbound 402 (2017) The aim of this essay is to show how international law relates to the interaction of indigenous peoples and animals across international borders. While colonial borders have affected the lives of herding communities in Africa and while there are cross-border indigenous activities in different parts of Latin America, the situation in Northern Europe... 2017
Timothy Q. Purdon, Katherine S. Barrett Wiik, Dr. Aryn Conrad Dapl: Storm Clouds on the Horizon in Indian Country 64-JUN Federal Lawyer 62 (June, 2017) The conflict between the Standing Rock Sioux Tribe, Energy Transfer Partners (the company seeking to build the Dakota Access Pipeline (DAPL)), and the U.S. Army Corps of Engineers over DAPL catapulted the issue of the impact of energy infrastructure development on American Indian tribes to the forefront of national consciousness. The protests at... 2017
Raymond Cross Development's Victim or its Beneficiary?: the Impact of Oil and Gas Development on the Fort Berthold Indian Reservation 38 Public Land & Resources Law Review 249 (2017) I. Introduction. 250 II. Why Development is Different on the Fort Berthold Indian Reservation. 255 A. The Tribal People's Unbreakable Geographic Ties to the Fort Berthold Indian Reservation. 257 1. Their Treaty-Based Geographic Ties to Fort Berthold. 258 2. Their Territorially-Based Rights of Sovereignty Within Fort Berthold. 259 3. Their... 2017
Jacob Franchek Digitizing Tribal Law: How Codification Projects Such as Tribal Law Online Could Give New Rise to American Indian Sovereignty 94 Washington University Law Review 1025 (2017) Well, neither could . anybody, right? I mean if anybody could find it, you could. It's because it's not published anywhere, right? --Chief Justice John Roberts, in response to being told by an attorney arguing for the Cheyenne River Sioux Tribe that his office had been unable to discover applicable Cheyenne River Sioux precedent. Today, in the... 2017
Anna Lindrooth Discretionary Deaths in Indian Country: Ensuring Full Funding for Tribal Health 26 Federal Circuit Bar Journal 277 (2017) I [Senator Byron L. Dorgan] used a photograph of a little girl every day I was on the Senator Floor [debating Indian healthcare improvement], a little girl named Ta'Shon Rain Little Light. I did that with the consent of her grandparents and her parents. Ta'Shon Rain Little Light, just to remind all of us what this subject is about, it is not about... 2017
Alan Friel, Andy Marcus, Stephanie Lucas Do Tell 40-MAY Los Angeles Lawyer 28 (May, 2017) BRANDS are tapping social media celebrities--also known as influencers--to promote their products and services, and influencers can command significant compensation. Brands also use social media and other digital media formats to publish ads that seem native to the format and look more like editorial content than ads. In both cases, consumers can... 2017
Elizabeth Ann Kronk Warner Environmental Justice: a Necessary Lens to Effectively View Environmental Threats to Indigenous Survival 26 Transnational Law & Contemporary Problems 343 (Summer, 2017) I. Introduction. 343 II. Environmental Justice and Indigenous Communities. 344 A. Tribal Sovereignty. 346 B. Federal Trust Relationship with Native Nations. 348 C. Unique Tribal Connection to the Land and Environment. 350 D. International Considerations. 351 III. Case Study: Protest of the Dakota Access Pipeline. 355 IV. Case Study: Negative... 2017
  Environmental Protection in Indian Country: the Fundamentals 47 Environmental Law Reporter News & Analysis 10905 (November, 2017) Tribes and Native villages are demonstrating reinvigorated environmental activism as they face new pressures on the natural resources many depend on for their economic and cultural livelihood. From the Standing Rock Sioux Tribe's protest against the Dakota Access Pipeline, to Alaska Native villages relocating their communities in the face of rising... 2017
Timothy Sandefur Escaping the Icwa Penalty Box: in Defense of Equal Protection for Indian Children 37 Children's Legal Rights Journal J. 1 (2017) In early 2016, a six-year-old Californian child named Lexi was taken from the arms of her weeping foster parents, Rusty and Summer Page, and sent to live with her step-second-cousin in Utah instead. She had lived with the Pages for four of her six years of life, after Los Angeles child welfare officials removed her from her drug-addicted mother... 2017
Jin Hyung Lee Establishing Applicable Water Quality Standards for Surface Waters on Indian Reservations 66 Emory Law Journal 965 (2017) The Clean Water Act is the foundational water law in the United States. It seeks to protect the nation's waters through establishing programs that limit pollutant discharge into surface waters. Water quality standards serve an essential role in protecting the surface waters of the United States because they set effluent limitations necessary to... 2017
Clinton Oxford Failing Native American Prisoners: Rluipa & the Dilution of Strict Scrutiny 9 Georgetown Journal of Law & Modern Critical Race Perspectives 203 (Fall, 2017) The treatment of prisoners is a reflection of society's true feelings about human rights. Thus, the rights of prisoners cannot lightly be ignored or cast aside or made politically expedient without serious repercussions to our constitutional liberties and human rights ideals. -Walter Echo-Hawk The Constitution's guarantee of religious liberty has... 2017
Jacob Laughlin Foreign-trade Zones in Indian County: Is a Foreign-trade Zone Right for Your Tribe? 42 American Indian Law Review 173 (2017) This Comment focuses on the establishment of Foreign-Trade Zones in Indian Country to create economic growth for tribes. In particular, it will discuss the possible impact Foreign-Trade Zones could have on tribes throughout the United States, provide tribes with information on how Foreign-Trade Zones work, and briefly examine the ways tribes can... 2017
Daniel Gick Fracking in the Badlands: Can Levying a Carbon Tax Against Oil and Gas Companies Help Native American Tribes Raise Revenue While Preserving Cherished Tribal Lands? 29 Georgetown Environmental Law Review 397 (Winter, 2017) Our entire tribal culture and existence is based on the principle that the land equals the people, us; destroy one and you destroy the other. Corey Sanders, Resident of Fort Berthold C1-3Table of Contents L1-2Introduction . L3398 I. Whether the MHA Nation has the Authority to Impose a Carbon Tax over O&G Companies Operating on (A) Trust Lands and... 2017
Casandia Bellevue Gmos, International Law and Indigenous Peoples 30 Pace International Law Review Rev. 1 (Winter 2017) This Article sprung from a desire to discover why--despite scientific uncertainty and the oft-cited precautionary principle in international law-- genetically modified organisms are still allowed to spread via international trade and natural ecological cycles. While exploring this topic, it did not take long to come across the environmental justice... 2017
David A. Hyman, David Franklyn, Calla Yee, Mohammad Rahmati Going Native: Can Consumers Recognize Native Advertising? Does it Matter? 19 Yale Journal of Law and Technology 77 (2017) Native advertising, which matches the look and feel of unpaid news and editorials, has exploded online. The Federal Trade Commission has long required advertising to be clearly and conspicuously labeled, and it recently reiterated that these requirements apply to native advertising. We explore whether respondents can distinguish native advertising... 2017
Ghazi Hashimi Helping Afghanistan's Informal Dispute Resolution Systems Follow Afghan Law in Criminal Matters: What Afghanistan Can Learn from Native American Peacemaking Program 25 Michigan State International Law Review 77 (2017) Informal dispute resolution is common in rural areas of Afghanistan because of a general lack of access to or inefficiency of the formal mechanisms in those areas. While the Afghan informal dispute resolution systems have been known to resolve some criminal cases in ways that violate human rights or deviate sharply from Afghan formal law, it is... 2017
Hope Babcock Here Today, Gone Tomorrow--is Global Climate Change Another White Man's Trick to Get Indian Land? The Role of Treaties in Protecting Tribes as They Adapt to Climate Change 2017 Michigan State Law Review 371 (2017) Indian Tribes are at the tip of the spear when it comes to climate change. Their dependence on their homelands for subsistence and cultural sustenance has made them vulnerable to climate-driven changes like sea level rise, shoreline erosion, and drought. As climate change makes their land less suitable for the animals and plants they depend on,... 2017
Sarah Alsabti Honor Killing and the Indigenous Peoples: Cultural Right or Human Right Violation? 45 Denver Journal of International Law and Policy 457 (Summer, 2017) Many sources define honor killing as the premeditated murder of a girl or a woman. The murderer who commits this crime is usually one of the girl's or woman's family members like her brother, father, or a combination of male agnates. The murderer commits this crime to restore the family's social reputation. The killer believes he is preserving the... 2017
Bethany R. Berger Hope for Indian Tribes in the U.s. Supreme Court?: Menominee, Nebraska V. Parker, Bryant, Dollar General . And Beyond 2017 University of Illinois Law Review 1901 (2017) There has long been concern that the U.S. Supreme Court is hostile to Indian tribes. Between 1990 and 2015, tribal interests lost in 76.5% of Supreme Court cases distinctly affecting them; the loss rate rose to 82% in the first decade of the Roberts Court. With four Indian law cases on the docket last year, Native communities were poised for... 2017
Amanda Rutherford How Non-violent Resistance Effects Positive Change Toward Protecting Indigenous Rights and Environmental Integrity in Guatemala 8 Arizona Journal of Environmental Law & Policy Pol'y 1 (Fall, 2017) This note discusses the changing legal landscape in Guatemala and the positive impact of non-violent community resistance on protecting the environmental, social, cultural, political, and economic interests of indigenous groups. Examples of Maya resistance against the Kappas and Cassiday & Associates El Tambor gold mine and the Goldcorp Marlin Gold... 2017
Jacob Krysiak Improving Microfinance Through International Agreements and Tailoring the System to Assist Indigenous Populations 41 American Indian Law Review 409 (2017) The rise of the microfinance system and microfinance institutions (MFIs) has gained great notoriety throughout the world as a means to provide a more tailored solution to assisting the world's poor, many of which belong to indigenous populations. As these institutions began to create strong foundations and develop a portfolio of financial... 2017
Shanna Knight , Victoria Sweet , David Simmons Improving Outcomes in Indian Child Welfare Cases: Strategies for State-tribe Collaboration 36 No.1 Child Law Practice 16 (January, 2017) When a child is removed from his or her home based on suspected abuse or neglect, the court steps in to make critical legal decisions affecting that child's and family's life. These decisions about a child's safety and permanency--usually the responsibility of parents--are also the honor and responsibility of extended family members, community... 2017
Rebekah Joab Incarcerating Native American Youth in Federal Bureau of Prisons Facilities: the Problem with Federal Jurisdiction over Native Youth under the Major Crimes Act 9 Georgetown Journal of Law & Modern Critical Race Perspectives 155 (Fall, 2017) Within the context of the United States system of incarceration, there is a growing consensus upon which both sides of the political spectrum can agree: there are far too many people in American prisons. It is well known that minority populations are overrepresented within the criminal justice system. Many scholars trace the current state of... 2017
Matthew L.M. Fletcher, Wenona T. Singel Indian Children and the Federal-tribal Trust Relationship 95 Nebraska Law Review 885 (2017) C1-2TABLE OF CONTENTS I. Introduction. 886 II. Indian Children and the Founding Generation. 892 A. The Treaty and International Law Basis of the Federal-Tribal Trust Relationship. 893 B. Federal Military and Diplomatic Actions. 895 1. Colonial Era. 896 2. Revolutionary War. 899 3. Post-Revolutionary War Era. 901 4. The Northwest Indian War. 903 5.... 2017
Lauren Adornetto Indian Country Complexities and the Ambiguous State of Marijuana Policy in the United States 65 Buffalo Law Review 329 (April, 2017) In March of 2016, U.S. Senator for New York Kirsten Gillibrand and U.S. Senator for New Jersey Cory Booker took to the realm of internet social media to share several videos that vigorously advocated for the need to expand research into the medical effects of marijuana. The social media news outlet, ATTN:, produced and shared a video featuring the... 2017
Hon. Michael J. Newman Indian Law, Success of the Fba's National Civics Initiative, and Hawaii 64-APR Federal Lawyer Law. 3 (April, 2017) This month's issue of The Federal Lawyer celebrates Indian Law and coincides with our annual Indian Law Conference--held this April at the Talking Stick Resort in Scottsdale, Ariz. The FBA is rightfully proud of the fact that our annual Indian Law Conference is the most well-attended Indian Law seminar in the United States, and has been so for many... 2017
Joseph William Singer Indian Title: Unraveling the Racial Context of Property Rights, or How to Stop Engaging in Conquest 10 Albany Government Law Review Rev. 1 (2017) It has never been contended, that the Indian title amounted to nothing. Their right of possession has never been questioned. The claim of government extends to the complete ultimate title, charged with this right of possession, and to the exclusive power of acquiring that right. Johnson v. M'Intosh (1823) [The Indian] right of occupancy is... 2017
Michael C. Blumm Indian Treaty Fishing Rights and the Environment: Affirming the Right to Habitat Protection and Restoration 92 Washington Law Review Rev. 1 (March, 2017) In 1970, several tribes in the Pacific Northwest, along with their federal trustee, sued the state of Washington claiming that numerous state actions violated their treaty rights, which assured them the right of taking fish in common with white settlers. The tribes and their federal trustee maintained that the treaties of the 1850s... 2017
Alex Tallchief Skibine Indians, Race, and Criminal Jurisdiction in Indian Country 10 Albany Government Law Review 49 (2017) Which Sovereign, among the Federal, States, and Indian nations, has criminal jurisdiction in Indian Country depends on whether the alleged perpetrator and/or the victim qualify as an Indian for the purposes of certain federal laws. Criminal jurisdiction in Indian Country is mostly determined by four federal laws, none of which have a specific... 2017
Walter H. Mengden IV Indigenous People, Human Rights, and Consultation: the Dakota Access Pipeline 41 American Indian Law Review 441 (2017) This Comment looks at the history of government-to-government relations between Native Americans and the United States. Using the Dakota Access Pipeline as a lens, this Comment proposes a step forward in advancing self-determination among Native Americans. Protecting Native American lands, the environment, and cultural history has been at the... 2017
Carla F. Fredericks , Rebecca Adamson , Nick Pelosi , Jesse Heibel Indigenous Rights of Standing Rock 43 Human Rights Rts. 2 (2017) The controversy surrounding the Dakota Access Pipeline (DAPL) is ubiquitous-- galvanizing indigenous communities and allies across the globe to stand with Standing Rock. One positive outcome has been a historic, revitalized movement to protect indigenous and human rights in the face of ever-expanding exploitation in the fossil fuel industry.... 2017
Dr. Waseem Ahmad Qureshi Indus Waters Treaty: an Impediment to the Indian Hydro-hegemony 46 Denver Journal of International Law and Policy 45 (Fall, 2017) Water is the most exquisite commodity, and its utility in the sectors of economy, food, and power production is exceptional. To capture this resource more effectively, powerful nations are racing to raise water management infrastructure in order to seize the reins of regional political supremacy by establishing hydro-hegemony. Within this context,... 2017
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