Joseph J. Heath, Esq The Doctrine of Christian Discovery: its Fundamental Importance in United States Indian Law and the Need for its Repudiation and Removal 10 Albany Government Law Review 112 (2017) The doctrine of Christian discovery has been a foundational principle in United State Indian law since the 1810 Supreme Court decision in Fletcher v. Peck and the 1823 decision in Johnson v. M'Intosh. Vine Deloria, Jr. reminded us of this, when he wrote a chapter entitled Conquest Masquerading as Law in 2006: [T]he treaties with Native Americans... 2017
S.J. Rombouts The Evolution of Indigenous Peoples' Consultation Rights under the Ilo and U.n. Regimes 53 Stanford Journal of International Law 169 (Spring, 2017) I. Introduction: Indigenous Peoples, International Law, and Consultation Rights. 170 A. Statistics and Definitions. 171 B. Contemporary Problems. 172 C. Land, Resources, and Self-Determination. 173 D. Cultural Recognition: Consultation and Participation. 176 II. ILO Convention 169 and the UNDRIP: Development and Key Concepts. 177 A. ILO Convention... 2017
Julia M. Bedell The Fairness of Tribal Court Juries and Non-indian Defendants 41 American Indian Law Review 253 (2017) At oral argument for Dollar General v. Mississippi Band of Choctaw Indians, Chief Justice John Roberts twice asked the Mississippi Choctaw's counsel if it would violate due process for a non-Indian defendant to be tried by a tribal court jury that consisted solely of tribal members. In response to this question, former Solicitor General Neal... 2017
Raymond Cross The Fate of Native American Diversity of America's Law Schools 38 Public Land & Resources Law Review 289 (2017) I. Introduction. 290 II. The Birth of Native American Diversity and Indian Self-Determination During the Late 1960s. 291 A. Introduction. 291 B. The Triumph of Indian Self-Determination. 293 C. The Rise of Native American Diversity in America's Law Schools. 295 D. 299 III. Why the Community Development Focused Model of Native American... 2017
Raymond Cross The Federal Trust Duty in an Age of Indian Self-determination: an Epitaph for a Dying Doctrine? 38 Public Land & Resources Law Review 209 (2017) I. Introduction. 211 A. Responding to the Realist Critique of the Federal Trust Doctrine. 211 B. Defending the Value of Scholarly Theorizing in the Federal Indian Law Context. 215 II. Exploring the Marshallian Roots of the Twin Concepts of the Federal Trust Duty and Indian Self-Determination. 219 A. Why Indian Advocates Rightfully Seized on the... 2017
Itzchak Kornfeld The Impact of Climate Change on American and Canadian Indigenous Peoples and Their Water Resources 47 Environmental Law Reporter News & Analysis 10245 (March, 2017) Access to water is a fundamental climate change issue in North America and internationally. It is related to significant political, social, and ecological struggles that indigenous peoples face, and governments and courts so far have done little to address these inequities. This Article, adapted from Chapter 10 of Climate Justice: Case Studies in... 2017
Alicia Summers , Kathy Deserly The Importance of Measuring Case Outcomes in Indian Child Welfare Cases 36 No.1 Child Law Practice 22 (January, 2017) As practicing child welfare attorneys, judges, and agency staff, you may not have a direct role in research on compliance or case outcomes for Indian Child Welfare Act (ICWA) cases . yet! New regulations were released in December 2016 that require child welfare agencies to gather ICWA data. Some of these data will naturally involve court processes... 2017
Holly E. Cerasano The Indian Health Service: Barriers to Health Care and Strategies for Improvement 24 Georgetown Journal on Poverty Law and Policy 421 (Spring, 2017) The need for quality health care is the thread that binds all Americans. All too often, that fundamental need goes unmet. For Native Americans, that will come as no surprise. Despite the creation of the Indian Health Service (IHS) and the funds appropriated by Congress each year to deliver adequate health care services, the Native American... 2017
Vindhya S. Mani , Divyanshu Srivastava , Mukundan Chakrapani , Jay Erstling The Indian Patent System: a Decade in Review 8 Cybaris an Intellectual Property Law Review Rev. 1 (2017) I. Introduction. 3 II. Evolution of the Patent Act. 4 III. Compulsory Licenses and Working of Patents. 6 A. Statutory Provisions. 7 B. Compulsory Licensing: 2007-2011. 9 C. Compulsory Licensing: 2011 Onward. 11 1. Brief Background. 11 2. Order of the Division Bench of the Bombay High Court. 12 3. Bombay High Court's Reasoning and Judgment. 12 a.... 2017
Joseph Patterson The Native American Struggle Between Economic Growth and Cultural, Religious, and Environmental Protection: a Corporate Solution 92 Notre Dame Law Review Online 140 (2017) Four days following his inauguration, President Donald Trump signed an executive order expedit[ing] the Dakota Access Pipeline (DAPL), otherwise known as the Bakken Oil Pipeline. This executive order sparked new rounds of protests by the Standing Rock Sioux Tribe, the Oglala Sioux Tribe, and environmentalists, who opposed the construction of the... 2017
Oliver W. MacLaren , Julie-Anne Pariseau , Olthuis, Kleer, Townshend LLP, Toronto, Canada,, Olthuis, Kleer, Townshend LLP, Toronto, Canada, The New World Bank Safeguard Standard for Indigenous Peoples: Where Do We Start? 45 Syracuse Journal of International Law and Commerce 35 (Fall, 2017) Paper prepared for presentation at the 2017 WORLD BANK CONFERENCE ON LAND AND POVERTY The World Bank--Washington DC, March 20--24, 2017 ABSTRACT. 36 I. INTRODUCTION. 36 II. UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES. 38 III. THE NEW ENVIRONMENTAL AND SOCIAL FRAMEWORK AND THE SAFEGUARD STANDARD ON INDIGENOUS PEOPLES. 42 A. ESF: A... 2017
Sarah Deer, Mary Kathryn Nagle The Rapidly Increasing Extraction of Oil, and Native Women, in North Dakota 64-APR Federal Lawyer 34 (April, 2017) During the past year, the Standing Rock Sioux Tribe and allies made national news as they gathered in prayerful ceremony at the confluence of the Missouri and Cannonball Rivers to stop the construction of the Dakota Access Pipeline project in North Dakota. The pipeline threatens the tribe's drinking water, sacred sites, and burial grounds, and, as... 2017
Lance Morgan The Rise of Tribes and the Fall of Federal Indian Law 49 Arizona State Law Journal 115 (Spring, 2017) I teach a one-week law school class on tribal economic law and policy. I start each class with the following written on the board: I hate federal Indian law, but I love tribal law. I explain to my students that I hate federal Indian law because it is a set of highly restrictive rules that often serve as rationalizations to take away or limit... 2017
Jonathan Gendzier The Tennessee Supreme Court and Cherokee Sovereignty: State V. Foreman and Indian Removal 25 Journal of Southern Legal History 309 (2017) . the swelling sides of the adjoining hills were then covered with habitations, and the rich level grounds beneath lying on the river, was cultivated and planted, which now exhibit a very different spectacle, humiliating indeed to the present generation, the posterity and feeble remains of the once potent and renowned Cherokees: the vestiges of the... 2017
Vicki J. Limas The Tribal Labor Sovereignty Act: Do Indian Tribes Finally Hold a Trump Card? 41 American Indian Law Review 345 (2017) In each congressional term since 2007, Republican lawmakers, with some Democratic supporters, have introduced bills titled Tribal Labor Sovereignty Act. The proposed legislation would amend the National Labor Relations Act (NLRA) to explicitly exclude from coverage federally recognized Indian tribes that operate tribally owned enterprises on... 2017
Mary K. Mullen The Violence Against Women Act: a Double-edged Sword for Native Americans, Their Rights, and Their Hopes of Regaining Cultural Independence 61 Saint Louis University Law Journal 811 (Summer, 2017) Diane Millich could not escape. Millich, a Native American and member of the Southern Ute tribe of Colorado, had found herself married to a physically and emotionally abusive husband. One day, her husband even appeared at her work carrying a gun, promising to kill her. Living on the Southern Ute reservation, Millich reached out to tribal law... 2017
Gina Allery The Volkswagen Settlement: an Opportunity for Tribes to Mitigate Nitrous Oxide Emissions in Indian Country 64-JUN Federal Lawyer 12 (June, 2017) On June 28, 2016, the United States lodged a partial settlement with automakers Volkswagen AG, Audi AG, Volkswagen Group of America Inc., and Volkswagen Group of Chattanooga Operations LLC (collectively Volkswagen). The partial settlement resolved allegations that Volkswagen violated the Clean Air Act by selling 2009 to 2015 model-year motor... 2017
Alice Wade The Waning of the Indian Child Welfare Act: How Mediation May Help Save the Act and Preserve its Original Intent 18 Cardozo Journal of Conflict Resolution 829 (Spring, 2017) In 1978, Congress passed the Indian Child Welfare Act (ICWA) in response to the staggering rates at which Native American Children were separated from their parents and removed from their communities. At the time, between twenty-five-thirty-five percent of all Native American children were removed from their families and placed in new homes,... 2017
Sarah Krakoff They Were Here First: American Indian Tribes, Race, and the Constitutional Minimum 69 Stanford Law Review 491 (February, 2017) Abstract. In American law, Native nations (denominated in the Constitution and elsewhere as tribes) are sovereigns with a direct relationship with the federal government. Tribes' governmental status situates them differently from other minority groups for many legal purposes, including equal protection analysis. Under current equal protection... 2017
Lorelei Laird To Form a Nation 103-NOV ABA Journal 54 (November, 2017) That sin--the forcible ouster of the Hawaiian monarchy--has some Native Hawaiians waging a legal battle to this day to regain some measure of independence. Under the monarchy, American and European businesspeople had prospered. But they wanted control in this land of paradise. So in 1887, they assembled a militia and forced King David Kalkaua at... 2017
Nicole Russell To Further Justice in the Greater Native American Community: Ethical Responsibilities of a Tribal Attorney in Disenrollment Disputes 30 Georgetown Journal of Legal Ethics 991 (Fall, 2017) The United States' long and fraught history with the native peoples who originally inhabited the land is largely considered one of exploitation, forced assimilation, and abandonment. In light of past injustices, the federal government has come to employ a government-to-government relationship with tribes and [has] recognized tribal jurisdiction.... 2017
Peter J. Herne Tribal Nations, Indian Gaming, and the Rigged Economy 10 Albany Government Law Review 239 (2017) On March 10, 2016 I was honored to serve as the key note speaker at the Native American Law in the Modern Era symposium hosted at Albany Law School. During my presentation I attempted to take attendees back in time and remind them of the role that Alexander Hamilton's funding plan had on Indian Country. What transpired for Tribal Nations under... 2017
Jenadee Nanini Tribal Sovereignty and Fintech Regulations: the Future of Co-regulating in Indian Country 1 Georgetown Law Technology Review 503 (Spring, 2017) Native American tribes possess something special--tribal sovereignty. Tribal sovereignty includes tribes' right to govern themselves, define their own membership, manage tribal property, and regulate tribal business and domestic relations. Tribal sovereignty also recognizes the existence of a government-to-government relationship between tribes... 2017
J. Garrett Kizer, Haley McCullough Tribal Water Law: Cutting Edge Insights from Practitioners in Indian Country 21 University of Denver Water Law Review 115 (Fall, 2017) Las Vegas, Nevada October 12-13, 2017 2017
Raymond Cross Tribes as Rich Nations 38 Public Land & Resources Law Review 117 (2017) I. Introduction. 119 A. The Life-Cycle of the Tribe. 123 1. Birth. 123 2. Childhood. 127 3. Adolescence. 128 4. Death. 133 5. Rebirth. 143 II. The Failed Effort to Emancipate the American Indian Peoples. 146 A. The Origin of Tribal Self-Determination. 147 1. Evaluating the Self-Determination Component. 148 2. Evaluating the Tribal Component. 149... 2017
Scott Trowbridge Understanding the 2016 Indian Child Welfare Act Regulations 36 No.1 Child Law Practice Prac. 6 (January, 2017) The Indian Child Welfare Act (ICWA) was passed in 1978 in response to widespread removals of Native American children. It came on the heels of official policies aimed at eroding tribal sovereignty and culture. ICWA is unique in that it seeks to protect children, their families, and the right of tribal governments to exercise parens patriae... 2017
Daniel I.S.J. Rey-Bear , Matthew L.M. Fletcher We Need Protection from Our Protectors: the Nature, Issues, and Future of the Federal Trust Responsibility to Indians 6 Michigan Journal of Environmental & Administrative Law 397 (Spring, 2017) The federal trust responsibility to Indians essentially entails duties of good faith, loyalty, and protection. While often thought of as unique to federal Indian policy, it developed from and reflects common law principles of contracts, property, trusts, foreign relations/international law, and constitutional law. However, several issues preclude a... 2017
Aubrey Ryan Bertram Western States Water Conference and Native American Rights Fund 15th Biennial Symposium on the Settlement of Indian Reserved Water Rights Claims 21 University of Denver Water Law Review 119 (Fall, 2017) Great Falls, Montana August 8-10, 2017 2017
Kevin K. Washburn What the Future Holds: the Changing Landscape of Federal Indian Policy 130 Harvard Law Review Forum 200 (April, 2017) For nearly two hundred years, the United States has been deemed to have legal and moral obligations to the American Indian nations that shared North America--sometimes voluntarily, sometimes not-- with immigrants. Today, these various federal obligations, collectively known as treaty and trust responsibilities, are no less weighty as the United... 2017
James Thomas Tucker , Natalie A. Landreth , Erin Dougherty Lynch Why Should I Go Vote Without Understanding What I Am Going to Vote For? the Impact of First Generation Voting Barriers on Alaska Natives 22 Michigan Journal of Race and Law 327 (Spring, 2017) INTRODUCTION.. 328 I. Alaska: A Legacy of Discrimination. 329 II. The Voting Rights Act in Alaska. 333 A. Section 5 of the Voting Rights Act. 333 B. The Alaska Native Landscape. 334 C. American Indians and Alaska Natives, and the VRA. 336 III. First Generation Barriers in Alaska. 340 A. Unequal In-Person Voting Opportunities. 340 B. Precinct... 2017
Devon Suarez , Simon Goldenberg Winner, Best Appellate Brief in the 2017 Native American Law Student Association Moot Court Competition 41 American Indian Law Review 483 (2017) I. Did the Secretary of the Interior err by authorizing the acquisition of land for the Miseno Band based on a determination that the Miseno meet the first prong of the definition of Indian in Section 19 of the IRA? II. Does Section 5 of the IRA constitute an unconstitutional exercise of Congressional authority to the Secretary that violates the... 2017
Oswaldo Ruiz-Chiriboga You Have No Right to Remain Silent: Self-incrimination in Ecuador's Indigenous Legal Systems 65 American Journal of Comparative Law 659 (Fall, 2017) Ecuador's Constitution recognizes the indigenous peoples' collective right to use and apply their own legal systems in cases of internal disputes. The Constitution, however, sets as a limit the respect of human rights. This Article examines one particular human right: the right to remain silent. After describing the findings of three separate field... 2017
Marcia Zug Your Money or Your Life: Indian Parents and Child Support Modifications 29 Journal of the American Academy of Matrimonial Lawyers 409 (2017) In 2013, Jolene Sharp was miserably unhappy. Her marriage was over, she hated her job and she was abusing alcohol. Recognizing this lifestyle was unsustainable, Jolene decided to make a change. She quit her job, moved back home to her native village of Stebbins, in rural Alaska, and began practicing a traditional, subsistence lifestyle. This move... 2017
Professor Lorie M. Graham, Amy Van Zyl-Chavarro, Esq. A Human Rights Perspective on Education and Indigenous Peoples: Unpacking the Meaning of Articles 14 and 15 of the Un Declaration on the Rights of Indigenous Peoples 8 Northeastern University Law Journal 135 (Winter, 2016) I. Introduction II. History and Meaning of Articles 14 and 15 A. Brief History of Indigenous Peoples and Education B. The Meaning of Article 14 1. Self-determination in Education 2. Linguistically Pertinent Education 3. Culturally Pertinent Education C. The Meaning of Article 15 III. Issues and Analysis of International Legal Framework A.... 2016
Paul Babie A New Narrative: Native Hawaiian Law 39 University of Hawaii Law Review 233 (Winter 2016) John Ralston Saul's landmark book The Comeback traces the resurgence over the last 100 years of the Aboriginal peoples of Canada. Saul says this: The situation is simple. Aboriginals have and will continue to make a remarkable comeback. They cannot be stopped. Non-Aboriginals have a choice to make. We can continue to stand in the way so that the... 2016
Austin R. Vance A Pretty Smart Answer: Justifying the Secretary of the Interior's "Seminole Fix" for the Indian Gaming Regulatory Act 40 American Indian Law Review 325 (2015-2016) [W]ith great reluctance . I am supporting [the Indian Gaming Regulatory Act]. --John McCain, United States Senator [W]hen we get North America back I'll be satisfied. --Kevin Washburn, Former Assistant Secretary of Indian Affairs When Senator John McCain questioned Kevin Washburn about a casino's proposed location, the Assistant Secretary of Indian... 2016
Iyanrick John , Kathy Ko Chin A Review of Policies and Strategies to Improve Access to Health Care for Limited English Proficient Individuals in the Asian American, Native Hawaiian, and Pacific Islander Community 16 University of Maryland Law Journal of Race, Religion, Gender and Class 259 (Fall, 2016) A person's health is influenced by many factors including race, gender, and socioeconomic status. Research indicates that certain groups of people experience health disparities due to a variety of contributing factors. Many studies, including the landmark Institute of Medicine report Unequal Treatment: Confronting Racial and Ethnic Disparities in... 2016
Jeffrey W. Stowers, Jr. A Starving Culture: Alaskan Native Villages' Fight to Use Traditional Hunting and Fishing Grounds 40 American Indian Law Review 41 (2015-2016) Every part of all this soil is sacred to my people. Every hillside, every valley, every plain and grove has been hallowed by some sad or happy event in the days long vanished. The very dust you now stand on responds more willingly to their footsteps than to yours, because it is rich with the blood of our ancestors, and our bare feet are conscious... 2016
John Sanders A Tiny Fish and a Big Problem: Natives, Elvers, and the Maine Indian Claims Settlement Act of 1980 57 William and Mary Law Review 2287 (May, 2016) Table of Contents Introduction. 2288 I. Background. 2292 A. Origins of the Lucrative Elver Fishery. 2292 B. The Mystery of Eel Biology. 2293 C. Current Conservation Status of the Eel. 2294 D. Current Status of the Passamaquoddy Tribe. 2298 II. Legal History of the Elver Fishery in Maine. 2300 A. Maine Elver Legislation. 2300 B. Special Elver... 2016
Kelly Gaines Stoner , Lauren Van Schilfgaarde Addressing the Oliphant in the Room: Domestic Violence and the Safety of American Indian and Alaska Native Children in Indian Country 22 Widener Law Review 239 (2016) Lakota people know that as long as a small infant has a soft spot on its head, it is sacred. It is through that opening that Tunkasila communicates with that child. Children are the hope of a nation . . . . The health and wellbeing of American Indian and Alaska Native (AI/AN) families are in peril as their children are exposed to domestic violence... 2016
Arnold W. Reitze Jr. Air Pollution Control on Indian Reservations 31-SUM Natural Resources & Environment Env't 8 (Summer, 2016) American Indian [hereinafter Indian] lands in 2014 were the sources of 1.8 percent of U.S. crude oil, 0.4 percent of the natural gas liquids, and 1.0 percent of the natural gas production. See U.S. Energy Info. Admin., Sales of Fossil Fuels Produced from Federal and Indian Lands FY 2003 through 2014, at 3 tbl.2 (2015). Royalty income from Indian... 2016
Satchit Bhogle Amenability of Indian Domestic Sports Governing Bodies to Judicial Review 27 Marquette Sports Law Review 153 (Fall, 2016) Sports governing bodies wield enormous power, not only over the rights and interests of athletes and players, but also over the sports loving public. It is therefore essential that sports governing bodies exercise their power fairly. At the same time, sport demands that its governing bodies be allowed to make decisions autonomously and quickly,... 2016
Robert J. Miller American Indian Nations and the International Law of Colonialism 63-FEB Federal Lawyer Law. 8 (January/February, 2016) Most of the non-European world was colonized under an international legal principle known today as the Doctrine of Discovery. Beginning in the early 1400s, European countries and the church began developing legal principles to exploit and acquire lands outside of Europe. As the doctrine developed, it provided that Europeans could acquire property... 2016
Kathryn R.L. Rand, Steven Andrew Light, Heidi McNeil Staudenmaier, Morden C. Lazarus American Indian Tribes and Canadian First Nations: the Impact of Gaming Law and Policy on the Industry 2016-SEP Business Law Today Today 1 (September, 2016) In the United States, Indian gaming is a $29 billion industry, with some 240 American Indian tribes operating more than 450 gaming operations in 28 states. Alan Meister, Casino City's Indian Gaming Industry Report (2016). In Canada, the First Nations gaming industry consists of fewer than 20 casinos, along with limited VLT palaces, with estimated... 2016
Arthur Acevedo An Argument in Support of Tax-free Per-cap Distribution Payments Derived from Native American Nations Gaming Sources 37 Northern Illinois University Law Review 66 (Fall, 2016) Gaming activities play important social, cultural, and economic roles for many Native American tribes. During the 1970s and 1980s, gaming activities spread throughout the country, and became more accessible to nonnative individuals. This growth in gaming activities drew the attention of state and local officials who sought to limit and regulate... 2016
D. Kapua‘ala Sproat An Indigenous People's Right to Environmental Self-determination: Native Hawaiians and the Struggle Against Climate Change Devastation 35 Stanford Environmental Law Journal 157 (June, 2016) I. Introduction. 158 II. Climate Change and Its Impacts on Native Peoples and Resources. 163 A. Climate Change and Environmental Injustice for Indigenous Peoples. 163 B. Knaka Maoli Cultural Survival and the Integrity of Hawaii's Natural and Cultural Resources. 167 C. Climate Change's Projected Impacts on Traditional and Customary Practices. 172... 2016
Stephanie Jade Bollinger Between a Tomahawk and a Hard Place: Indian Mascots and the Ncaa 2016 Brigham Young University Education and Law Journal 73 (2016) In a segment of The Daily Show, which aired on September 25, 2014, Comedy Central interviewed four die-hard Washington Redskins fans about the controversy over the team's name. Unbeknownst to the four fans, the show lined up eight Native American activists and arranged a confrontation between the groups during the interview. The objective of the... 2016
Ingrid Messbauer Beyond "Redskins": a Source-based Framework for Analyzing Disparaging Trademarks and Native American Sports Logos 25 Federal Circuit Bar Journal 241 (2016) On July 8, 2015, the District Court for the Eastern District of Virginia in Pro-Football, Inc. v. Blackhorse upheld the U.S. Patent and Trademark Office's decision to cancel the Washington Redskins' trademark registrations on the grounds that the term Redskin is disparaging to Native Americans. This decision comes after decades of Native American... 2016
Jessica K. Sink , Richard Bales Born in the Bandwidth: "Digital Native" as Pretext for Age Discrimination in Hiring 31 ABA Journal of Labor & Employment Law 521 (Spring, 2016) Young people are just smarter, Facebook Chief Executive Officer Mark Zuckerberg told an audience at Stanford University. Why are most chess masters under 30? he asked. I don't know . Young people just have simpler lives. We may not own a car. We may not have family. In Silicon Valley, the mecca of tech start-ups, it is trendy to hire... 2016
Raina Thiele Building Relations: Alaska Natives, Ancsa and the Federal Government 33 Alaska Law Review 183 (December, 2016) [F]or me as a young person, having grown up all over the state and also having exposure to Anchorage and the outlying locations, I had experience with The CIRI Foundation, the Cook Inlet Tribal Council, the Heritage Center, and a variety of different tribal organizations, all of which were pushing a college education. Not only asking How do you... 2016
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