Chris Wold Integrating Indigenous Rights into Multilateral Environmental Agreements: the International Whaling Commission and Aboriginal Subsistence Whaling 40 Boston College International and Comparative Law Review 63 (2017) Although the international community has addressed whether environmental harm violates human rights norms, only recently has it asked whether international organizations must implement those norms. That changed when Greenland posited that the International Whaling Commission (IWC) has a duty to implement aboriginal subsistence whaling... 2017
Dalindyebo Bafana Shabalala Intellectual Property, Traditional Knowledge, and Traditional Cultural Expressions in Native American Tribal Codes 51 Akron Law Review 1125 (2017) Abstract. 1126 I. Introduction. 1126 II. What is Native American Intellectual Property and Why Does it Need Protection?. 1128 III. How Have Native American Tribes Legislated on Intellectual and Cultural Property?. 1135 A. Code Formation. 1138 B. Survey Methodology. 1139 C. Analysis. 1140 IV. What is the Scope of Current Federal Law Protecting... 2017
Ravi Soopramanien International Trade in Indigenous Cultural Heritage: What Protection Does International Law Provide for Indigenous Cultural Goods and Services in International Commerce? 53 Stanford Journal of International Law 225 (Spring, 2017) International law recognizes the property rights of indigenous peoples to their cultural heritage. Specifically, human rights treaties, customary international law, and humanitarian law have all developed to require host countries to safeguard the property rights of indigenous and tribunal peoples to their cultural heritage, human remains, and, to... 2017
Kevin J. Fandl, Nitisha Jain Investment in the Indian Real Estate Market 46 Real Estate Law Journal 32 (Summer, 2017) Real estate cannot be lost or stolen, nor can it be carried away. Purchased with common sense, paid for in full, and managed with reasonable care, it is about the safest investment in the world. - Franklin D. Roosevelt The real estate sector is the backbone of the Indian economy, as it largely contributes to its growth. Despite the turmoil that... 2017
John Dossett Justice Gorsuch and Federal Indian Law 43 Human Rights Rts. 6 (2017) On April 7, 2017, the Senate voted to confirm Justice Neil Gorsuch to fill the vacancy on the U.S. Supreme Court created by the death of Justice Antonin Scalia. Justice Gorsuch has served on the Tenth Circuit since 2006, and his judicial record received significant media attention during the Senate confirmation hearings. Although it was a... 2017
  Key Indian Child Welfare Resources 36 No.1 Child Law Practice 21 (January, 2017)   2017
Troy J.H. Andrade Legacy in Paradise: Analyzing the Obama Administration's Efforts of Reconciliation with Native Hawaiians 22 Michigan Journal of Race and Law 273 (Spring, 2017) This Article analyzes President Barack Obama's legacy for an indigenous people--nearly 125 years in the making--and how that legacy is now in considerable jeopardy with the election of Donald J. Trump. This Article is the first to specifically critique the hallmark of Obama's reconciliatory legacy for Native Hawaiians: an administrative rule that... 2017
Edward D. Melillo Make No Bones about It: the Need to Reform the Native American Graves Protection and Repatriation Act 30 Quinnipiac Probate Law Journal 149 (2017) It is most unpleasant work to steal bones from a grave, but . someone has to do it .. --Franz Boas, father of American Anthropology Pemina Yellow Bird is a member of the Mandan, Hidatsa, and Arikara Nations of North Dakota. One day in 1984, a security guard escorted her to a vault where she met the state archaeologist. The security guard unlocked... 2017
Kirsten Matoy Carlson Making Strategic Choices: How and Why Indian Groups Advocated for Federal Recognition from 1977 to 2012 51 Law and Society Review 930 (December, 2017) How and why do groups employ law strategically in different venues? This article combines theoretical and methodological insights from sociolegal and interest-group studies to investigate how and why nonfederally recognized Indian groups used administrative and legislative strategies for federal recognition from 1977 to 2012. By detailing the... 2017
Beatrice I. Bonafé, Sapienza University of Rome Maritime Delimitation in the Indian Ocean (Somalia V. Kenya). Preliminary Objections. At International Court of Justice, February 2, 2017 111 American Journal of International Law 725 (July, 2017) On February 2, 2017, the International Court of Justice (ICJ or Court) delivered a judgment rejecting preliminary objections to its jurisdiction in Maritime Delimitation in the Indian Ocean. The underlying contentious case between Somalia and Kenya concerns the establishment of a single maritime boundary between the two states. The decision on... 2017
Lauren Manning Mining for Compromise in Pastoral Greenland: Promise, Progress, and Problems in International Laws' Response to Indigenous People 32 American University International Law Review 931 (2017) I. INTRODUCTION. 932 II. A REGION DEFINED BY HISTORY, POLITICS, AND NATURAL RESOURCES. 934 A. A CULTURE TORN AT THE CROSSROADS. 936 B. PRACTICAL CHALLENGES TO MINING IN THE ARCTIC. 939 III. INTERNATIONAL LAW & EXTRACTIVE MINING. 941 A. THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS. 942 B. THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL,... 2017
Amy Ralph Mudge, Randal Shaheen Native Advertising, Influencers and Endorsements: Where Is the Line Between Integrated Content and Deceptively Formatted Advertising? 21 No.5 Journal of Internet Law L. 1 (November, 2017) If you have read an article or seen a video online in the last five years, then you likely have encountered native advertising. Also known as content marketing or branded content, native advertising looks like a news story, feature article, product review, entertainment, or other kind of editorial content, but a brand marketer may have... 2017
Amy Ralph Mudge Native Advertising, Influencers, and Endorsements: Where Is the Line Between Integrated Content and Deceptively Formatted Advertising? 31-SUM Antitrust 80 (Summer, 2017) IF YOU HAVE READ A MAGAZINE OR SEEN a video online in the last five years, then you have likely encountered native advertising. Also known as content marketing or branded content, native advertising looks like a news story, feature article, product review, entertainment, or other kind of editorial content, but a brand marketer may have... 2017
Fred L. Borch, Regimental Historian & Archivist Native Americans in the Corps: a Very Short History of Judge Advocates with American Indian Ancestry 2017-APR Army Lawyer Law. 1 (April, 2017) While Native Americans have been a part of Army history since the Revolutionary War, the Corps has almost no information about Judge Advocates with American Indian ancestry. This very short history seeks to change that situation by identifying three Army lawyers with Indian tribal affiliation. Brigadier General (retired) Thomas S. Tom Walker,... 2017
Navid Khazanei Native Fragility: the Precarity of Permanent Resident Aliens in Federal Public Employment 45 Southern University Law Review 162 (Fall, 2017) As secular Iranians, my parents were victims of various forms of discrimination in Iran's public sector for disobeying the theocratic state. My father, an ophthalmologist, despite having top credentials, was denied promotions at his public hospital, because he did not want to adhere to the code of conduct expected by the theocratic state such as... 2017
Angela R. Riley Native Nations and the Constitution: an Inquiry into "Extra-constitutionality" 130 Harvard Law Review Forum 173 (April, 2017) Federal Indian law is oftentimes characterized as a niche and discrete area of law, but this depiction really misstates the breadth and relevance of the field. Federal Indian law is a horizontal subject: virtually every area of law in the American canon has an Indian law component: taxation, water rights, civil and criminal jurisdiction, labor... 2017
Addie C. Rolnick Native Youth & Juvenile Injustice in South Dakota 62 South Dakota Law Review 705 (2017) Three themes are critically important to understanding the experience of Native youth in the juvenile justice system: racism, jurisdiction, and tribal sovereignty. Racial disparities are a widely acknowledged problem in juvenile justice. While public conversation most often focuses on the over-representation and over-incarceration of African... 2017
Kirke Kickingbird New Horizons in Indian Country 43 Human Rights Rts. 1 (2017) The spring 2017 meeting of the Section of Civil Rights and Social Justice was held in St. Louis in late April. It was a joint meeting with the Section of State and Local Government, the Public Contract Law Section, and the Forum on Affordable Housing. St. Louis has always been a unique site at the conjunction of the Mississippi, Ohio, and Missouri... 2017
Alec Martinez Norton V. Ute Indian Tribe: Seeking Concrete Delineations in the Tribal Exhaustion Doctrine 95 Denver Law Review Online 13 (2017) While American Indian tribes are ever-seeking to promote their own self-governance and right to territorial management within reservation borders, tribal judicial systems have been traditionally limited in their ability to assert civil jurisdiction over nonmembers within reservations. The Ute Tribe's desire for control within its reservation led to... 2017
Riley Plumer Overriding Tribal Sovereignty by Applying the National Labor Relations Act to Indian Tribes in Soaring Eagle Casino and Resort V. National Labor Relations Board 35 Law & Inequality: A Journal of Theory and Practice 131 (Winter, 2017) On July 1, 2015, the United States Court of Appeals for the Sixth Circuit decided Soaring Eagle Casino and Resort v. NLRB. The three-judge panel unanimously concluded that the National Labor Relations Act (NLRA), a generally applicable federal statute, should not apply to Indian tribes. However, by a 2-1 vote, the court held that the NLRA would... 2017
Marshal Garbus Penobscot Nation V. Mills: First Circuit Dodges the Indian Canon of Construction to Diminish the Water Rights of the Penobscot Nation 31 Tulane Environmental Law Journal 107 (Winter 2017) I. Overview. 107 II. Background. 108 A. The Indian Canon of Construction. 108 B. Alaska Pacific Fisheries v. United States and Interpreting Water Rights. 109 C. Historical Context: The Penobscot Nation and The Maine Indian Claims Settlement Act. 110 1. The Settlement Acts. 110 2. Maine v. Johnson, Delineation of Water Rights, and Sovereignty. 111... 2017
Erin Yerke Personalizing Pollution and Landscape Destruction: How Native American and International Perspectives Should Be Integrated into Federal Environmental Policy 19 Rutgers Journal of Law & Religion 73 (Fall, 2017) Every part of this soil is sacred in the estimation of my people. Every hillside, every valley, every plain and grove, has been hallowed by some sad or happy event in days long vanished. Even the rocks, which seem to be dumb and dead as they swelter in the sun along the silent shore, thrill with memories of stirring events connected with lives of... 2017
Douglas C. Harris Property and Sovereignty: an Indian Reserve and a Canadian City 50 U.B.C. Law Review 321 (June, 2017) Property rights, wrote Morris Cohen in 1927, are not about things, but about relations between the owner and other individuals in reference to things. The law of property constructs a particular set of relationships between people, and, in the case of private property, he continued, its essence is always the right to exclude. This right,... 2017
Adam Crepelle , Walter E. Block Property Rights and Freedom: the Keys to Improving Life in Indian Country 23 Washington and Lee Journal of Civil Rights and Social Justice 315 (Spring, 2017) American Indians are at the bottom of nearly every indicator of welfare and have been since the founding of the United States. The present paper focuses on but two of the causal agents: lack of private property rights and a dearth of economic freedom. Although addressing these issues will not solve all of Indian country's problems, strengthening... 2017
Brittany Raia Protecting Vulnerable Children in Indian Country: Why and How the Violence Against Women Reauthorization Act of 2013 Should Be Extended to Cover Child Abuse Committed on Indian Reservations 54 American Criminal Law Review 303 (Winter, 2017) When Lenny Hayes thinks about his childhood on the Sisseton Wahpeton Oyate Reservation in South Dakota he does not remember bike rides, bedtime stories, or a safe and loving home. Instead, Hayes remembers the physical, mental, emotional and sexual abuse that he experienced almost daily. Hayes was just six years old when the abuse started. He... 2017
Richard W. Hughes Pueblo Indian Water Rights: Charting the Unknown 57 Natural Resources Journal 219 (Winter, 2017) This article examines the so-far-unsuccessful efforts to judicially define and quantify the water rights appurtenant to the core land holdings of the 19 New Mexico Pueblos, many of whose lands straddle the Rio Grande. It explains that the Tenth Circuit Court of Appeals has squarely held that Pueblo water rights are governed by federal, not state... 2017
Jennifer Safstrom Reaction to Failing Native American Prisoners: Rluipa & the Dilution of Strict Scrutiny by Clinton Oxford: Assessing Levels of Scrutiny with Scrutiny 9 Georgetown Journal of Law & Modern Critical Race Perspectives 221 (Fall, 2017) Oxford presents a compelling argument in favor of strict scrutiny in assessing regulations within the penal system that impact the religious beliefs and traditions of Native Americans. Practically, this is a salient issue because of the disproportionally high rates of incarceration for Native Americans. Normatively, it is important to ensure that... 2017
Christian Garramone Reaction To: 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 173 (Fall, 2017) Joab skillfully examines how the United States' criminal justice system serves as its newest tool for oppressing Native American tribes. Joab hopes to bring attention to this oppressive force by drawing parallels between the Native American criminal justice experience and that of black Americans described in The New Jim Crow and rallied against by... 2017
Sam McMullan Recognition, Constitution Building and the Indian Nations of North and Northwest United States 1775-1795: the Importance of Indian Nations to the Framing of the Us Constitution 10 Albany Government Law Review 318 (2017) In the words of the Declaration of Independence, Native American Indian peoples in the eighteenth century were viewed as merciless . Savages, whose known Rule of Warfare, is an undistinguished Destruction of all Ages, Sexes and Conditions. This perception led one visitor to Pennsylvania in the 1780s to comment that [t]he Country taulks of... 2017
Grace Nosek Re-imagining Indigenous Peoples' Role in Natural Resource Development Decision Making: Implementing Free, Prior and Informed Consent in Canada Through Indigenous Legal Traditions 50 U.B.C. Law Review 95 (February, 2017) There is a movement in Canada to ensure Indigenous peoples are fully empowered to participate in natural resource development decision making by requiring the government to obtain the Free, Prior and Informed Consent of Indigenous peoples before approving any development projects affecting their traditional territories. At the same time, there is a... 2017
Dean B. Suagee Renewable Energy Service Companies for Indian Country 31-WTR Natural Resources & Environment 50 (Winter, 2017) This article offers an idea for Indian tribal governments to help pick up the pace of the renewable energy revolution and make sure Indian country is not left behind. The people of Indian country could realize a wide range of benefits through widespread implementation of renewable energy technologies, but there are obstacles. My basic idea is that... 2017
Kathleen Finn, Erica Gajda, Thomas Perin, Carla Fredericks, American Indian Law Clinic University of Colorado Law School Responsible Resource Development and Prevention of Sex Trafficking: Safeguarding Native Women and Children on the Fort Berthold Reservation 40 Harvard Journal of Law & Gender Gender 1 (Winter, 2017) C1-3Table of Contents I. Introduction. 2 II. Sex Trafficking, Native Women, and the Bakken Oil Boom. 4 A. The Intersection of Sex Trafficking and the Extractive Industries on the Fort Berthold Reservation. 7 III. Obstacles to Criminal Enforcement in Indian Country. 10 A. Criminal Jurisdiction in Indian Country. 10 1. The Indian Country Crimes Act.... 2017
Valerie Lambert, University of North Carolina at Chapel Hill Rethinking American Indian and Non-indian Relations in the United States and Exploring Tribal Sovereignty: Perspectives from Indian Country and from Inside the Bureau of Indian Affairs 40 PoLAR: Political and Legal Anthropology Review 278 (November, 2017) This article uses materials from field research conducted at the level of tribal homelands and at the federal level of the Bureau of Indian Affairs to rethink and reconceptualize Indian-non-Indian relations and federal-Indian relations in the United States. I document the ways Chickasaw and Choctaw tribal officials are moving beyond the deadliest... 2017
Elizabeth Ann Kronk Warner Returning to the Tribal Environmental "Laboratory": an Examination of Environmental Enforcement Techniques in Indian Country 6 Michigan Journal of Environmental & Administrative Law 341 (Spring, 2017) Governments, including tribes, need to protect one of humankind's most valuable resources: the environment. In addition to environmental regulations, effective enforcement mechanisms are key to successful efforts to protect the environment. While much has been written about the environmental enforcement mechanisms of states and the federal... 2017
Tiernan Kane Right by Precedent, Wrong by Rfra: the "Substantial Burden" Inquiry in Oklevueha Native American Church of Hawaii, Inc. V. Lynch, 828 F.3d 1012 (9th Cir. 2016) 40 Harvard Journal of Law & Public Policy 793 (June, 2017) Not long ago, the United States Supreme Court reaffirmed that the Religious Freedom Restoration Act (RFRA) is a robust protection of religious freedom. Still, some federal circuits remain devoted to a more restrictive teaching. Recently, in Oklevueha Native American Church of Hawaii, Inc. v. Lynch, the Ninth Circuit held that a church and church... 2017
Allison E. Davis Roadway to Reform: Assessing the 2015 Guidelines and New Federal Rule to the Indian Child Welfare Act's Application to State Courts 22 Suffolk Journal of Trial and Appellate Advocacy 91 (2016-2017) In 1987, Congress enacted the Indian Child Welfare Act (ICWA), in order to protect Native American children during custody and placement proceedings. The 38-year-old statute was last updated on its application with guidelines in 1979. Over the years, courts have determined that the guidelines were not binding on state courts; rather the... 2017
Michael I. Fiske Self-determination for Whom? Native American Sovereign Immunity & Disability Rights 10 Albany Government Law Review 271 (2017) Both Native American tribes and individuals with disabilities are historically oppressed minorities that have experienced a variety of profound social, cultural, and economic barriers. From the very beginnings of the United States, dominant societal attitudes have perceived Native Americans as being inferior and uncivilized, and commonly referred... 2017
Bryan R. Lynch Silence Is Anything but Golden: Laws of General Applicability in Indian Country 42 American Indian Law Review 207 (2017) On July 8, 2012, Theresa Carsten was employed by the Inter-Tribal Council of Nevada (ITCN), a non-profit organization made up of twenty-six federally recognized Nevada tribes, as the director of the Women, Infants, and Children Program. One day later, Carsten was fired for, as she alleged in a complaint filed against the ITCN, seeking leave under... 2017
Jennifer Bundy Small-town Pride 2017-MAR West Virginia Lawyer 24 (January-March, 2017) Allen H. Loughry II is proud to be a small-town boy, proud of his extensive education and proud to be the first chief justice from Tucker County. Loughry credits his humble childhood as a significant influence in his adult life and believes it will continue to guide him in his role as chief justice. I grew up in a very average West Virginia... 2017
Raymond Cross Sovereign Bargains, Indian Takings and the Preservation of Indian Country in the 21st Century 38 Public Land & Resources Law Review 15 (2017) I. Introduction. 16 A. Chief Justice Marshall's Construction of the Indian Bargaining Model. 25 B. The Giving and Taking of Indian America. 27 C. The First Era: Americanizing the European Doctrine of Discovery. 30 D. The Second Era: The Indian Peoples' Descent from Sovereign to Wardship Status. 34 E. The Third Era: Judicial Indecision Regarding the... 2017
Matthew L.M. Fletcher States and Their American Indian Citizens 41 American Indian Law Review 319 (2017) For the past four decades, Republican control of the White House and Congress has not augured well for Indian country. Conservative administrations are unlikely to support trust land acquisitions, for example. The current administration's informal spokesmen talk openly of privatizing Indian trust and reservation lands, a twenty-first century form... 2017
The Honorable Richard Blake Strengthening Indian Children and Families: Lessons from Tribal Court 36 No.1 Child Law Practice 19 (January, 2017) A young girl's case came before me. She had experienced more tragedy and heartache than any person deserves at a young age. As the tribal judge hearing her case, I was charged with placing her in a home with individuals and a family who would be responsible for caring for her and healing her heart. Because there was not available kin or a home with... 2017
Deepa Badrinarayana The "Right" Right to Environmental Protection: What We Can Discern from the American and Indian Constitutional Experience 43 Brooklyn Journal of International Law 75 (2017) Introduction. 76 I. Environmental Protection and the U.S. Constitution. 83 A. Understanding the Environmental Justice Problem. 83 B. Constitutional Law and Environmental Justice. 86 II. Environmental Protection and the Indian Constitution. 96 A. Constitutional Law and Environmental Protection in India. 97 1. The Supreme Court's Interpretation of... 2017
Prabhash Ranjan , Pushkar Anand The 2016 Model Indian Bilateral Investment Treaty: a Critical Deconstruction 38 Northwestern Journal of International Law and Business Bus. 1 (Fall, 2017) In the global backdrop of backlash against bilateral investment treaties (BITs) and the investor-state dispute settlement (ISDS), this paper critically studies India's new Model BIT, adopted in 2016 as a response to increasing number of ISDS claims brought against India. This paper studies the Indian Model BIT, which heralds a new era of... 2017
Neyooxet Greymorning The Anglocentric Supremacy of the Marshall Court 10 Albany Government Law Review 191 (2017) From the period of 1810 to 1835 legal precedent was established on issues pertaining to the rights of Indigenous peoples by the United States Supreme Court through its decisions in what frequently is referred to as the Marshall Cases. From this period on, Justice Marshall's rulings have consistently been cited as representing definitive... 2017
Cate Bailey, Martine Powell, Sonja P. Brubacher, Deakin University The Attrition of Indigenous and Non-indigenous Child Sexual Abuse Cases in Two Australian Jurisdictions 23 Psychology, Public Policy, and Law 178 (May, 2017) Indigenous children are significantly more likely to be victims of sexual abuse than non-Indigenous children. To investigate justice outcomes for Indigenous children, we aimed in this study to compare Indigenous versus non-Indigenous cases of suspected child sexual abuse as they proceed through the criminal justice system in 2 Australian... 2017
Evelyn Rose, The University of Melbourne The Beginning and End of Rape: Confronting Sexual Violence in Native America. By Sarah Deer. Minneapolis: University of Minnesota Press, 2015. 232 Pp. $22.95 Paperback 51 Law and Society Review 209 (March, 2017) Native American scholar Sarah Deer's new book is a timely and valuable contribution which offers a wide-ranging and insightful consideration of the crisis of sexual violence against Native women. The author opens by challenging the description of this problem as an epidemic, arguing that the term depoliticizes the issue by conjuring images of a... 2017
Dennis S. Karjala , Robert K. Paterson The Case Against Property Rights in Old Intangible Indigenous Cultural Property 15 Northwestern Journal of Technology & Intellectual Property Prop. 1 (Fall, 2017) Note--This article expands on a chapter to be published as The Failed Case for Property Rights in Intangible Indigenous Cultural Property, in Christoph Antons and William Logan (eds.) Intellectual Property, Cultural Property and Intangible Cultural Heritage (Routledge, forthcoming, 2017). This article critically reviews some of the... 2017
Charles Short The Creation of the Sierra Del Divisor National Park: the Conservation of Foreign Investment in Peru, or How a National Park Neglects to Fully Protect Natural Resources or Indigenous Communities 49 University of Miami Inter-American Law Review 167 (Fall, 2017) I. Introduction. 168 II. Peruvian Laws Governing the Environment and Indigenous People. 170 1. The Constitution of Peru. 170 2. Prior Consultation. 172 3. The Implementation of Prior Consultation in Peru. 173 4. Peru's Mining Laws. 176 5. Required Environmental Impact Studies. 178 III. The Creation of the Sierra Del Divisor National Park. 180 1.... 2017
Andrew W. Minikowski The Creation of Tribal Cultural Hegemony under the Indian Arts and Crafts Act and Native American Graves Protection and Repatriation Act 92 North Dakota Law Review 397 (2017) Congress enacted the Indian Arts and Crafts Act and the Native American Graves Protection and Repatriation Act with the goal of providing tribes with greater control and authority over their own handicraft traditions and cultural resources. Although both laws have been successful in many aspects, both have also produced unintended consequences that... 2017
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