Ghislain Otis Individual Choice of Law for Indigenous People in Canada: Reconciling Legal Pluralism with Human Rights? 8 UC Irvine Law Review 207 (March, 2018) Introduction. 207 I. Choice of Law as a Diffusionist Colonial Tool. 210 II. The Protection of Human Rights as a New Justification for Individual Choice. 214 III. Indigenous Governance, Choice of Law, and Human Rights in Canada. 216 Conclusion. 225 2018
Julie Yassine Ip Rights and Indigenous Rights: Between Commercialization and Humanization of Traditional Knowledge 20 San Diego International Law Journal 71 (Fall, 2018) C1-2Table of Contents I. Introduction. 72 II. Commercialization of Traditional Knowledge. 74 A. Western IP Perception of Traditional Knowledge. 74 1. General Features of IP Law. 75 2. Applying IP Law to Traditional Knowledge. 76 B. Indigenous Groups' Criticism of IP-Based Traditional Knowledge. 78 1. Limited Scope of Protection. 78 2. Lack of... 2018
Marie-Andrée Denis-Boileau , Marie-Ève Sylvestre Ipeelee and the Duty to Resist 51 U.B.C. Law Review 538 (July, 2018) On 7 April 2015, nearly three years to the day following the ruling by the Supreme Court of Canada in R v Ipeelee, the Manitoba Court of Appeal upheld the seven-year prison sentence meted out to John Charlette. John Charlette is a 30-year old Cree man. Born in Flin Flon, Manitoba, he ran away from home at age six to Winnipeg. There, he was picked... 2018
Julie Davies , Luis Mogollon Issonant Voices: Understanding Guatemala's Failure to Amend its Constitution to Recognize Indigenous Law 25 U.C. Davis Journal of International Law and Policy 69 (Fall, 2018) This article seeks to understand Guatemala's continued failure to recognize indigenous law as part of the country's legal system. Indigenous law is a form of customary law comprised of unwritten norms that are accepted and applied by Guatemala's various indigenous populations. Guatemala promised recognition of indigenous law and other reforms to... 2018
Deborah Kelly John H. Haney Director, California Indian Law Association 40-FEB Los Angeles Lawyer Law. 8 (February, 2018) What is the perfect day? Spending time with my wife, running, and playing guitar. Do you play guitar in a band? No, but I sat in for LACBA's Big Band of Barristers. You are one of nearly 19,000 members of the Seminole Nation of Oklahoma. What does that mean to you? My culture means everything to me. Is your family involved in Native American... 2018
Clyde Ray John Marshall, the Native American Cases, and the Idea of Constitutional Nationalism 26 Journal of Southern Legal History 277 (2018) In May 2017, members of a coalition representing thousands of Native Americans across North America gathered in Calgary, Alberta, to sign a declaration reaffirming traditional values of tribal sovereignty and treaty rights. At the heart of the document was an unyielding rejection of the proposed Keystone-XL pipeline, a project that, when completed,... 2018
Kirsten Matoy Carlson Judge Murphy's Indian Law Legacy 103 Minnesota Law Review 37 (November, 2018) Federal Indian law profoundly shapes the daily lives of American Indians. The United States has dealt legally with Indian nations or tribes by treating them as separate sovereign governments since its formation. Before the end of the treaty period in 1871, the United States entered into some 400 treaties with Indian tribes, acknowledging their... 2018
Jennifer Hendry , Melissa L. Tatum Justice for Native Nations: Insights from Legal Pluralism 60 Arizona Law Review 91 (Spring, 2018) This Article makes the case that, despite being underused by U.S. scholars in the field of Indian and Indigenous peoples law, a legally pluralist approach can and does provide vital conceptual insights. Not only does legal pluralism supply an important framework through which to conceptualize and address existing power imbalances between Indian... 2018
Chandra Murdoch, University of Toronto Katrina Jagodinsky, Legal Codes and Talking Trees: Indigenous Women's Sovereignty in the Sonoran and Puget Sound Borderlands, 1854-1946, New Haven: Yale University Press, 2016. Pp. Ix + 352. $30 (Isbn 9780300211689) 36 Law and History Review 435 (May, 2018) In 1864, King S. Woolsey apprehended Lucía Martínez, a Yaqui child who had escaped from the intertribal slave trade in the Sonoran desert. Forced to tend to Woolsey's domestic and sexual demands on his Arizona ranch, Martínez faced a complex web of laws in her long fight to secure freedom for herself and the children she bore there. These laws were... 2018
  Learning to Listen: Improving Law Enforcement in Indian Country Through Collaboration and Consultation 2018 Federal Sentencing Reporter 3371281 (2/1/2018) For more than 200 years, the United States Congress has tried to legislatively manage the role and responsibility of federal law enforcement on tribal lands and over tribal members. When federal prosecutors enforced these laws, tribal governments were rarely consulted, tribal sovereignty was largely ignored, and tribal members were rarely able to... 2018
Tisa Wenger, Associate Professor of American Religious History, Yale University Legal Codes and Talking Trees: Indigenous Women's Sovereignty in the Sonoran and Puget Sounds Borderlands, 1854-1946. By Katrina Jagodinsky. New Haven: Yale University Press, 2016. Pp. 352. $40.00 (Cloth). Isbn: 978-0300211689 33 Journal of Law and Religion 125 (April, 2018) At the heart of this innovative and artfully constructed book are six case studies of Native American women from the cultural and legal borderlands of Arizona and Washington. Bringing together the fields of settler colonial and indigenous studies, U.S. western and borderlands history, and the social history of American law, Katrina Jagodinsky makes... 2018
Dr. Morad Elsana Legal Pluralism and Indigenous Peoples Rights: Challenges in Litigation and Recognition of Indigenous Peoples Rights 87 University of Cincinnati Law Review 1043 (2018) Countries that have succeeded in integrating traditional law into their formal legal systems have found that justice [was] done more effectively .. Rodolfo Stavenhagen This article discusses the contribution of legal pluralism to the recognition of the rights of indigenous peoples. It presents the options (and their shortcomings) of recognizing... 2018
Kirsten Matoy Carlson LOBBYING AS A STRATEGY FOR TRIBAL RESILIENCE 2018 Brigham Young University Law Review 1159 (2018) Indian tribes have endured as separate governments despite the taking of their land, the forced relocation of their people, and the abrogation of their treaty rights. Many threats to tribal existence have stemmed from federal policies aimed at assimilating Indians into mainstream American society. In crafting these policies, members of Congress... 2018
Madeline Roe Flores May the Spirit of Section 106 Yet Prevail?: Recognizing the Environmental Elements of Native American Intangible Cultural Heritage 92 Tulane Law Review 667 (February, 2018) I. Introduction. 668 II. Background. 670 A. Standing Rock Sioux Tribe's Cultural Places and Practices. 670 B. Dakota Access Pipeline. 672 III. U.S. Law Protecting Cultural Heritage. 673 A. National Historic Preservation Act. 673 B. National Environmental Policy Act. 677 IV. Application of U.S. Law. 679 A. Standing Rock Sioux Tribe v. U.S. Army... 2018
Cassidy Wadsworth Skousen Minding the Gap: Improving Parental Involvement to Bridge Education Gaps Between American Indian and Non-indian Students 2018 Brigham Young University Education and Law Journal 193 (2018) The Navajo Tribe dislikes talking about the dead. The tribe refers to such conversation as talking in darkness. Michalyn Steele, a former attorney for the Department of Interior (DOI), learned this when she sat down with Navajo elders to discuss a spate of teenage American Indian suicides within the nation. The youth suicide rate among American... 2018
Christopher J. Gnaedig Mining on Indian Land: It's Not What You Think 39 Energy Law Journal 547 (2018) I. Introduction. 547 II. Background. 548 A. Overview of the Osage Act and its Implications on Mining Operations. 549 B. Factual Background of Osage Wind. 549 1. Previous Litigation. 550 2. Osage Wind's (Mining?) Operations. 551 C. OMC Had Standing to Appeal and Res Judicata Did Not Bar Its Claims.. 552 D. Osage Wind's Crushing and Repurposing of... 2018
Celine Shirooni Native Advertising in Social Media: Is the Ftc's "Reasonable Consumer" Reasonable? 56 Washington University Journal of Law & Policy 221 (2018) An undeniable truth about contemporary society in the United States is that the use of social media has become so prevalent that it now spans across generations. The reliance on and frequent use of this social media has revolutionized the advertisement of products. Advertisement agencies and companies have recognized this shift. Anyone with an... 2018
Kirsten Mehnert Native American Reproductive Health Law--reproductive Justice: the Politics of Healthcare for Native American Women 14 Journal of Health & Biomedical Law 445 (2018) No Money, No People, No Service- Sarah One in four Native American children are born in Indian Health Services (IHS) hospitals. After birth, Native American women are four times more likely to hemorrhage, three times more likely to have gestational diabetes, and preeclampsia occurs twice as often than the national average. On the Pine Ridge... 2018
Gregory D. Smith Native American Tribal Appellate Courts: Underestimated and Overlooked 19 Journal of Appellate Practice and Process 25 (Spring, 2018) The more than 500 federally recognized Native American tribes in the United States operate between 250 and 300 trial courts and more than 150 appellate courts. Although the quality of tribal court systems and the prestige and respect accorded to them all continue to rise, tribal courts still endure occasional condescension by non-tribal jurists.... 2018
Fred L. Borch, Regimental Historian & Archivist Native Americans in the Corps: a Very Short History of Judge Advocates with American Indian Ancestry 2018-FEB Army Lawyer 45 (February, 2018) 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,... 2018
Mary Smith Native Americans: a Crisis in Health Equity 43 Human Rights 14 (2018) By any measure, health care for Native Americans lags behind other groups, despite a legal obligation on the part of the United States to provide health care to American Indians and Alaska Natives. Native American communities face significant inequity in health care and health status compared to other U.S. populations. Health outcomes for Native... 2018
M. Alexander Pearl Originalism and Indians 93 Tulane Law Review 269 (December, 2018) Indian tribes, in the context of U.S. constitutional theory, do not fit. They are an anomaly in American governmental structure. Tribal governments exist today within the constitutional framework of the United States only by virtue of acrobatic displays of rhetorical legal reasoning and mythologized interpretations of history. Originalist theory... 2018
Irina Dykhne Persuasive or Deceptive? Native Advertising in Political Campaigns 91 Southern California Law Review 339 (January, 2018) C1-2TABLE OF CONTENTS INTRODUCTION. 340 I. CAMPAIGN FINANCE DISCLOSURE. 342 A. Buckley v. VALEO AND THE Supreme Court's Disclosure Framework. 342 B. The Bipartisan Campaign Reform Act of 2002 and Disclosure Post-Buckley. 346 C. Citizens United v.-FEC. 347 II. EMPIRICAL STUDIES MEASURE THE BENEFITS OF DISCLOSURE. 350 A. The Effectiveness of... 2018
Claudia Azzam PIERCING THE TRIBAL VEIL: TRIBAL SOVEREIGN IMMUNITY IN THE ANOMALOUS CONTEXT OF THE PHARMACEUTICAL INDUSTRY 20 Rutgers Race & the Law Review 39 (2018) The pharmaceutical giant, Allergan, recently transferred ownership of its patents covering its blockbuster eye medication for Restasis to a Native American tribe. Allergan did so in an attempt to use the Saint Regis Mohawk Tribe's sovereign immunity to shield its patents from inter partes review, an administrative proceeding conducted by the Patent... 2018
James D. Diamond Practicing Indian Law in Federal, State, and Tribal Criminal Courts: an Update about Recent Expansion of Criminal Jurisdiction over non-indians 32-WTR Criminal Justice Just. 8 (Winter, 2018) as a result of changes in federal law, criminal defense attorneys are more likely to find themselves or their clients appearing in American Indian tribal courts. This article summarizes the very knotty jurisdictional maze that surrounds criminal law and American Indians or Indian tribes. It explains recent changes in the handling of domestic... 2018
Sarah Deer, Elizabeth Ann Kronk Warner Raping Indian Country 38 Columbia Journal of Gender and Law 31 (2018) This article examines issues going to the heart of tribal self-determination-- extractive industries operating within and near Indian country and how they are impacting tribal communities through climate change and the safety of Native people, especially women and children. Given the importance of the topic, the title of this article is... 2018
Grant Christensen , Melissa L. Tatum Reading Indian Law: Evaluating Thirty Years of Indian Law Scholarship 54 Tulsa Law Review 81 (Autumn, 2018) I. Introduction. 82 II. Evolution of Thinking in Indian Law. 83 III. Methodology: The Scoring and Selection Process. 86 A. How the Articles Were Selected. 86 B. How the Articles Were Scored. 89 1. Lexis. 90 2. Westlaw. 91 3. Final Reported Score. 92 C. Caveats: The Limits of Quantitative Analysis. 92 1. Time. 93 2. Timing. 94 3. Books & Other... 2018
Philipp C. Kunze Remaining Silent in Indian Country: Self-incrimination and Grants of Immunity for Tribal Court Defendants 93 Washington Law Review 2139 (December, 2018) A defendant in state and federal courts is entitled to a constitutional protection against self-incrimination. The Fifth Amendment establishes this privilege, which can only be overcome through a voluntary waiver or by the granting of an appropriate level of immunity. Those grants of immunity were made mutually binding on the state and... 2018
Addie C. Rolnick Resilience and Native Girls: a Critique 2018 Brigham Young University Law Review 1407 (2018) C1-2Contents Introduction. 1407 I. Resilience Literature. 1409 A. Resilient Institutions. 1410 B. Resilient Individuals. 1412 II. Resilience and Native Girls. 1415 III. Naturalizing Trauma; Punishing Survival. 1418 IV. Making Resilience Work for Native Girls. 1424 Conclusion. 1426 2018
Leslie A. Hagen , National Indian Country Training Coordinator, Executive Office for United States Attorneys Responding to Elder Abuse and Neglect in American Indian and Alaska Native Communities 66 Department of Justice Journal of Federal Law and Practice 275 (December, 2018) The earliest teaching to most Native children is that they must respect and honor their elders. Such a lesson must never be lost through time or merely because one grows up. There is a deep, lengthy tradition of respect for an elder's experience, maturity, age and wisdom. Mary is 63 years old and suffering with Stage Four breast cancer that has... 2018
Sarah Deer, Mary Kathryn Nagle Return to Worcester: Dollar General and the Restoration of Tribal Jurisdiction to Protect Native Women and Children 41 Harvard Journal of Law & Gender 179 (Winter, 2018) C1-2Table of Contents Introduction. 180 I. Non-Indian Perpetrated Violence Against Native Women Was Designed to Secure Colonial Conquest and the Destruction of Tribal Nations. 187 A. Native Women Form the Foundation of Tribal Sovereignty. 187 B. Non-Indian Perpetuated Violence Was Purposefully Used Against Native Women and Children as a Form of... 2018
Sarah Deer, Mary Kathryn Nagle RETURN TO WORCESTER: DOLLAR GENERAL AND THE RESTORATION OF TRIBAL JURISDICTION TO PROTECT NATIVE WOMEN AND CHILDREN 41 Harvard Journal of Law & Gender 179 (Winter, 2018) C1-2Table of Contents Introduction. 180 I. Non-Indian Perpetrated Violence Against Native Women Was Designed to Secure Colonial Conquest and the Destruction of Tribal Nations. 187 A. Native Women Form the Foundation of Tribal Sovereignty. 187 B. Non-Indian Perpetuated Violence Was Purposefully Used Against Native Women and Children as a Form of... 2018
Adrea Korthase Seminal Choices: the Definition of "Indian Child" in a Time of Assisted Reproductive Technology 31 Journal of the American Academy of Matrimonial Lawyers 131 (2018) There is no DNA test that can prove if someone is Native American. Who asks the question and how it is answered can impact tribal membership and individual identity. Assisted reproductive technology (ART) introduces new considerations for tribes defining their tribal membership and carries with it many implications. Therefore, it is important to... 2018
Adam Crepelle Shooting down Oliphant: Self-defense as an Answer to Crime in Indian Country 22 Lewis & Clark Law Review 1283 (2018) Crime is a dire public safety problem in Indian country as Indians suffer violent crime at twice the rate of any other racial group. Indian country's unique and confusing jurisdictional scheme combined with a shortage of police leave Indians easy targets for those looking to commit crimes. A largely unexplored answer to crime in Indian country is... 2018
Anne Monjar Social Contract: the Distributive Significance of a Native Nation's Patent Agreement with Allergan 16 Northwestern Journal of Technology & Intellectual Property 107 (November, 2018) In 2017, pharmaceutical giant Allergan announced an innovative new agreement with the Saint Regis Mohawk Tribe of upstate New York. Allergan was to transfer ownership of the patent of its successful dry eye drug Restasis to the Tribe in exchange for an exclusive licensing agreement. The hope was that the Tribe's sovereign immunity would... 2018
Robert J. Miller Sovereign Resilience: Reviving Private-sector Economic Institutions in Indian Country 2018 Brigham Young University Law Review 1331 (2018) C1-2Contents I. Introduction. 1332 II. Current Economic Conditions in Indian Country. 1335 III. Traditional American Indian Private-Sector Institutions. 1339 A. Private Rights in Real Property. 1341 B. Personal Property. 1347 C. Trade. 1349 D. Native Business Skills. 1353 E. Indian Currencies. 1354 F. Accumulating Wealth. 1356 IV. Reviving... 2018
Alan Hanna Spaces for Sharing: Searching for Indigenous Law on the Canadian Legal Landscape 51 U.B.C. Law Review 104 (January, 2018) The interaction between multiple legal orders is complex given the violent historical impact of colonialism that informs these relationships in Canada. The context of multiple First Nations and Indigenous communities in Canada, and the dynamics of multiple relationships each containing variations of different and distinct legal orders, exposes the... 2018
  Statutory Interpretation--severability--tenth Circuit Holds That Severability Analysis Cannot Extend to Construing Indian Gaming Regulatory Act to Support an Administrative Remedy.-- New Mexico V. Department of the Interior, 854 F.3d 1207 (10th Cir. 2017) 131 Harvard Law Review 1828 (April, 2018) When a court strikes down part of a statute as unconstitutional, it must decide what becomes of the wreckage. If the court determines Congress would have enacted the other provisions in the statute without the unconstitutional provision, the court may cut out the unconstitutional portion and leave the rest of the statute on the books. Yet this... 2018
Hon. Barbara A. McAuliffe Stolen or Lawful? A Case Review of an Indian Tribe's Claim to Aboriginal Land in California 49 California Western International Law Journal L.J. 1 (Fall, 2018) C1-2Table of Contents Introduction. 2 I. The Parties in the Tribe's Case. 3 II. The Tribe's Claims to the Land. 4 A. The Tribe's Claims Regarding the Right to Occupy. 4 B. Title to the 270,000 Acres. 7 III. Aboriginal Title, the Act of 1851, and the Treaty of Guadalupe Hidalgo. 8 A. Aboriginal Title. 8 B. Overview of the Treaty of Guadalupe... 2018
Maura Douglas Sufficiently Criminal Ties: Expanding Vawa Criminal Jurisdiction for Indian Tribes 166 University of Pennsylvania Law Review 745 (February, 2018) American Indian and Alaska Native women face the highest rates of sexual assault of any group in the United States, and most often such attacks are by non-Indian offenders. Since Oliphant v. Suquamish Indian Tribe, tribes cannot exercise criminal jurisdiction over non-Indians, even for crimes committed against an Indian victim in federally... 2018
Maura Douglas SUFFICIENTLY CRIMINAL TIES: EXPANDING VAWA CRIMINAL JURISDICTION FOR INDIAN TRIBES 166 University of Pennsylvania Law Review 745 (February, 2018) American Indian and Alaska Native women face the highest rates of sexual assault of any group in the United States, and most often such attacks are by non-Indian offenders. Since Oliphant v. Suquamish Indian Tribe, tribes cannot exercise criminal jurisdiction over non-Indians, even for crimes committed against an Indian victim in federally... 2018
Elizabeth MacLachlan Tensions Underlying the Indian Child Welfare Act: Tribal Jurisdiction over Traditional State Court Family Law Matters 2018 Brigham Young University Law Review 455 (2018) State courts have historically exercised jurisdiction over family law cases. However, under the Indian Child Welfare Act (ICWA), Indian child custody and adoption cases have been taken out of state jurisdiction and placed with Indian tribal governments. State courts have pushed back against proper deference to ICWA and violate ICWA by misapplying... 2018
Gautam Sundaresh The Indian Supreme Court and International Environmental Norms 48 Environmental Law Reporter News & Analysis 10125 (February, 2018) The relationship of the Indian Supreme Court with the citizens of the country is undoubtedly an interesting one. Underlying the Court's image is an unbridled reverence by the people, and a rather prominent separation from society (one that it keenly regulates). The Court has been globally recognized for its inclination toward activism and its... 2018
Amanda M. Marincic The National Historic Preservation Act: an Inadequate Attempt to Protect the Cultural and Religious Sites of Native Nations 103 Iowa Law Review 1777 (May, 2018) The National Historic Preservation Act (NHPA) of 1966 established a federal policy of preserving historic places at the federal, state, and local level. In 1992, the Act was amended to include sites of cultural and religious significance to Native Nations on the National Register of Historic Places. This Note argues how that inclusion,... 2018
Daniel Fors The Native Species Protection Act: a Deceptively-named Measure to Destroy the Endangered Species Act 29 Villanova Environmental Law Journal 177 (2018) Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed. It is a many-faceted treasure, of value to scholars, scientists, and nature lovers alike, and it forms a vital part of the heritage we all share as Americans. --Richard Nixon The Endangered Species Act (ESA) is... 2018
Matthew D. Craig The Negative Effects of Confusion over Collateral Agreements under the Indian Gaming Regulatory Act: Which Agreements Need Review? 8 UNLV Gaming Law Journal 185 (Spring, 2018) A bank hired a top-100 law firm to document loans for a $28 million Indian gaming casino financing project. Whether done as the result of genuine confusion or neglect, the law firm did not encourage the bank to seek approval from the National Indian Gaming Commission (NIGC) regarding a Notice and Acknowledgement of Pledge agreement. After the... 2018
Olivia Karns The Potential Effects of Sturgeon V. Frost on Alaska Native Corporations 43 Journal of Corporation Law 965 (Summer, 2018) I. Introduction. 965 II. Background. 966 A. The History of Alaska Native Claims to Land. 967 B. Alaska Native Claims Settlement Act and the Birth of Alaska Native Corporations. 968 C. How the Lack of Sovereignty Affects Alaska Native Corporations. 970 III. Analysis. 973 A. ANILCA, ANCSA, and Sturgeon v. Frost. 973 B. Economic Activities on Lands... 2018
Allison M. Dussias The Reports of Our Death Are Greatly Exaggerated--reflections on the Resilience of the Oneida Indian Nation of New York 2018 Brigham Young University Law Review 1231 (2018) C1-2Contents I. Introduction. 1232 II. Preliminary Matters: Defining Resilience, Focusing on the Nation. 1235 A. Defining Resilience. 1235 B. Focusing on the Oneida Indian Nation of New York. 1236 III. Oneida Resilience in the Face of Dispossession of Land, Denial of Existence, and Denigration of Sovereignty. 1238 A. We Want Your Land--and We Are... 2018
Andrew Schrack THE SHIFTING LANDSCAPE OF ANCESTRAL LANDS: TRIBAL GATHERING OF TRADITIONAL PLANTS IN NATIONAL PARKS 9 Arizona Journal of Environmental Law & Policy 1 (Fall, 2018) I. Introduction. 1 II. Historical Gathering Rights in National Parks. 2 A. Treaties. 3 B. Congressional Acts and Presidential Proclamations. 5 C. Agreements. 7 III. Shifting Legal Landscape. 10 A. 2016 Regulatory Changes. 12 1. Criticism of the Regulations. 15 IV. Eastern Band of Cherokee Indians Case Study. 17 A. United States v. Burgess. 20 B.... 2018
Jennifer L. Robinson , Stephen L. Nelson The Small but Powerful Voice in American Elections: a Discussion of Voting Rights Litigation on Behalf of American Indians 70 Baylor Law Review 91 (Winter, 2018) I. Introduction. 92 II. Background and History of Voting Rights for American Indians. 96 A. The Status of American Indians in the U.S. Constitution. 96 B. The Marshall Trilogy. 97 C. The Civil Rights Act of 1866 and the Fourteenth Amendment to the U.S. Constitution. 99 D. Indian Citizenship and the Indian Citizenship Act of 1924. 101 1. Residency.... 2018
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