Teresa Hawkinson Can a Sioux Be Sued for Embracing Mary Jane?: Tribal Sovereign Immunity Concerns Arising from the Legalized Marijuana Trade on Indian Land 3 St. Thomas Journal of Complex Litigation 44 (Fall, 2016) Having celebrated the one-year anniversary of the 2014 Department of Justice Wilkinson memorandum (Wilkinson Memo) regarding the Federal Government's discretionary authority in the enforcement of marijuana on Tribal lands, the matter appears to have created more questions than answers. While some Tribes see this as a lucrative business... 2016
W. Gregory Guedel, Ph.D. , J.D. Colbert Capital, Inequality, and Self-determination: Creating a Sovereign Financial System for Native American Nations 41 American Indian Law Review Rev. 1 (2016) C1-2Table of Contents Executive 2 I. Introduction. 4 II. Challenges For Tribes In Accessing Capital. 9 A. Historical and Structural Problems. 9 B. Commercial Capital Source Problems. 11 C. Conflict of Law Problems. 14 D. U.S. Government Trust Management Problems. 17 III. United States Senate Oversight Hearing on Access to Capital in Indian... 2016
Michael B. Farley Caught on the Wrong Side of the Line: an Examination of the Relationship Between the Payday Loan Industry and American Indian Tribal Sovereignty 42 Journal of Corporation Law 481 (Winter 2016) I. Introduction. 482 II. Background. 483 A. Payday Loan Companies. 484 1. The Function of Payday Loans in the Lending Market. 484 2. The Problems with Payday Loans. 484 3. Recent Development in Responses to Payday Loans. 485 4. Ways the Payday Loan Industry is Adapting. 487 B. American Indian Tribal Sovereignty and Immunity. 488 III. Analysis. 492... 2016
  Chapter 17 • Native American Resources 2016 ABA Environment, Energy, and Resources Law: The Year in Review 193 (2016) This year saw the continuation of several issues relating to the Indian Child Welfare Act and the status of Native Hawaiians. The year also saw the emergence of what will likely be a continuing dispute concerning the construction of a pipeline across potential historic sites in North Dakota. Congress passed only one significant piece of legislation... 2016
Scott Priz Chicago's Last Unclaimed Indian Territory: a Possible Native American Claim upon Billy Caldwell's Land 50 John Marshall Law Review 91 (Fall, 2016) I. Introduction. 92 II. A Brief History of Billy Caldwell and His Land. 94 A. Billy Caldwell and the Land Granted to Him by Treaty. 94 B. The Land that Was Conveyed and Not Conveyed by Caldwell. 98 C. An Unexpected Son. 103 D. Possession of the Land by Robb Robinson. 107 E. Native American Protections against Adverse Possession. 109 F. Obligations... 2016
Lorelei Laird Children of the Tribe 102-OCT ABA Journal 40 (October, 2016) Alexandria P.'s short life has been full of harsh goodbyes. At 17 months, she was taken from her parents after accusations of neglect. Los Angeles County authorities placed her in a foster home--but within months, she suffered a black eye and a scrape and was removed again. A second foster family gave her up after just a few months, partly because... 2016
Dean B. Suagee Clean Power: a Federal Plan for Indian Country? 30-SPG Natural Resources & Environment 55 (Spring, 2016) The Clean Power Plan (CPP), the Obama administration's initiative to use the authority of the U.S. Environmental Protection Agency (EPA) under the Clean Air Act (CAA) to regulate emissions of carbon dioxide (CO2) from existing fossil fuel-fired electric utility generating units (EGUs), was published as a final rule on October 23, 2015. 80 Fed. Reg.... 2016
Daniel S. Sem Co-developing Drugs with Indigenous Communities: Lessons from Peruvian Law and the Ayahuasca Patent Dispute 23 Richmond Journal of Law and Technology Tech. 1 (12/2/2016) This paper will examine the issues surrounding the co-development of drugs derived from traditional medicines used by indigenous peoples in Amazonia, with a focus on Peru. In particular, this paper will explore what national, regional and international legal structures are in place to protect the interests of indigenous peoples, while at the same... 2016
Mark Adams College of Law Committed to Native Law Program 59-OCT Advocate 35 (October, 2016) As dean of the University of Idaho College of Law, I believe the Native American Law program is a key part of our college's future and aligns with our steadfast belief that a law school should stand for serving the public and increasing access to justice. Our program is focused on providing law students with a foundation in tribal law, federal... 2016
Aneta Pavlenko , Diana Eades , Margaret van Naerssen Communicating Miranda Rights to Non-native Speakers of English 40-APR Champion 57 (April, 2016) Suspects' interview rights, referred to as Miranda rights in the United States and as police cautions in Australia, England and Wales, are country-specific interpretations of the rights embodied in the 1966 International Covenant on Civil & Political Rights, signed by the majority of the world's countries. The purpose of the requirement to... 2016
Racheal M. White Hawk Community-scale Solar: Watt's in it for Indian Country? 40-FALL Environs Environmental Law and Policy Journal J. 1 (Fall, 2016) Native American households disproportionately lack electricity service in comparison to other households in the United States. Community-scale solar energy could be a valuable means of helping to address this disparity, especially on remote Indian reservations where access to the electric grid can be cost-prohibitive. However, federal policymakers... 2016
Eugene R. Fidell Competing Visions of Appellate Justice for Indian Country: a United States Court of Indian Appeals or an American Indian Supreme Court 40 American Indian Law Review 233 (2015-2016) In 2013 I proposed the establishment by federally recognized tribes of an opt-in American Indian Supreme Court that would review decisions of tribal courts. After that article went to press, the congressionally created Indian Law and Order Commission (ILOC) released an important report, A Roadmap for Making Native America Safer. Because the ILOC... 2016
Julie Lurman Joly , Christopher Behnke Congress Resurrects a Native Harvest and Creates Potential for Conflict in Migratory Bird Management 27 Colorado Natural Resources, Energy & Environmental Law Review 133 (Summer, 2016) In 2014 Congress passed the Huna Tlingit Traditional Gull Egg Use Act. The Act reestablishes a native gull egg harvest that had been eliminated in the 1960s. The new statute, however, does not reference the Migratory Bird Treaty Act or the migratory bird treaties, and the new statute contains several provisions that conflict with one or the other... 2016
Allyssa Wall Constitutional Law--the Reaffirmation of the Lack of Sixth Amendment Protections for Indigent Native American Defendants in Tribal Court Proceedings United States V. Bryant, 136 S. Ct. 1954 (2016) 92 North Dakota Law Review 251 (2016) In United States v. Bryant, the United States Supreme Court held that tribal court convictions of uncounseled indigent defendants of domestic assault are sufficient to convict under 18 U.S.C. § 117(a), which is the federal offense of domestic assault in Indian country by a habitual offender. The Court found that because the Sixth Amendment does not... 2016
Arpan Banerjee Copyright Piracy and the Indian Film Industry: a "Realist" Assessment 34 Cardozo Arts and Entertainment Law Journal 609 (2016) In India, the academic discourse surrounding intellectual property (IP) has been marked by great skepticism. Global IP laws have been viewed as a Western imposition detrimental to national interests. In this paper, I will make the case for a realist approach to film piracy in India, i.e., an approach that is rooted in legal pragmatism and draws... 2016
Angela R. Riley Crime and Governance in Indian Country 63 UCLA Law Review 1564 (August, 2016) Criminal jurisdiction in Indian country is defined by a central, ironic paradox. Recent federal laws expanding tribal criminal jurisdiction are, in many respects, enormous victories for Indian country, as they acknowledge and reify a more robust notion of tribal sovereignty, one capable of accommodating increased tribal control over safety and... 2016
Giovanna Gismondi Denial of Justice: the Latest Indigenous Land Disputes Before the European Court of Human Rights and the Need for an Expansive Interpretation of Protocol 1 18 Yale Human Rights and Development Law Journal L.J. 1 (2016) In its three latest decisions on indigenous land rights, the European Court of Human Rights (ECtHR) has afforded scant protection to indigenous peoples. Through an analysis of each case in terms of substantive and procedural law, this Article evaluates the challenges indigenous peoples face when pursuing their claims before the Court. I argue that... 2016
Ryan Dreveskracht Doing Business in Indian Country: a Primer 2016-JAN Business Law Today Today 1 (January, 2016) There are more than 566 tribal governments in the United States, varying in population from a few hundred members to more than 600,000, with a land base of more than 52.7 million acres. The past 15 years have seen tribes emerge as powerful economic, legal, and political forces. And as part of this renaissance, tribes are increasingly partnering... 2016
Nicole Greenstein, Gerard Salvatore, Allison Hoppe Dollar General Corp., et Al. V. the Mississippi Band of Choctaw Indians, et Al. (13-1496) 63-APR Federal Lawyer 68 (April, 2016) Does an Indian tribal court have jurisdiction to adjudicate civil tort claims against nonmembers of the tribe, including nonmembers who enter into a consensual relationship with the tribe or its members? Whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers, including as a means of regulating the conduct... 2016
Tyrel Stevenson Dollar General V. Mississippi Band of Choctaw Indians: Where Do We Go from Here? 59-OCT Advocate 26 (October, 2016) On June 23, 2016 the United States Supreme Court issued a one-sentence opinion which read, The judgment is affirmed by an equally divided Court. The short, unusual, anti-climactic and perhaps fittingly unfinished tone of the holding leaves at first blush as many questions as answers to the most hotly contested topic of our Indian law practice:... 2016
  Economic Justice and Inclusion 40-SUM Fletcher Forum of World Affairs 11 (Summer, 2016) FLETCHER FORUM: To begin, could you each share your vision of a just society? AMIT BHADURI: My vision of a just society is one in which the poorest have the same rights as the top 10 percent in terms of access to courts, nutrition, healthcare, and education. What you give to the rich, you also give to the poor; what you give to the men, you also... 2016
Juliana Ramirez El Gran Canal De Nicaragua: When Government Infrastructure Infringes on the Land Rights of Indigenous Communities 22 Southwestern Journal of International Law 411 (2016) I. Introduction. 412 II. Land Rights. 414 III. International Recognition of the Land Rights of Indigenous Communities. 418 A. The Indigenous and Tribal Peoples Convention (ILO 169). 418 1. The Recognition of Indigenous Ties to Land. 418 2. The Right of Consultation. 419 3. The Right of Participation. 420 4. The Indigenous Communities May Only be... 2016
Chloe Bourne Environmental Jurisdiction in Indian Country: Why the Epa Should Change its Definition of Indian Agency Jurisdiction under the Safe Drinking Water Act 27 Colorado Natural Resources, Energy & Environmental Law Review 293 (Summer, 2016) I. INTRODUCTION. 295 II. DEFINITIONS OF INDIAN COUNTRY. 298 III. HYDRO RESOURCES III'S INTERPRETATION OF DEPENDENT INDIAN COMMUNITY. 299 A. The Community of Reference Test is Compatible with Supreme Court Precedent. 301 B. Ignoring the Community of Reference Goes Against Congress' Intent in Enacting 18 U.S.C. § 1151. 304 C. Hydro Resources Ill's... 2016
Hon. Elizabeth Ann Kronk Warner Ethics and Indian Country 63-APR Federal Lawyer Law. 4 (April, 2016) Practicing Indian law can be an immensely rewarding experience. Many lawyers who practice in the field gravitate toward Indian Country because of a strong desire to promote tribal sovereignty and to protect tribal customs and traditions. Furthermore, increasingly, lawyers who may have never otherwise dreamed that their practices would lead them to... 2016
Tyler Kennedy Expanding Jurisdiction: Increasing Tribal Ability to Prosecute Criminal Behavior on Native American Land 15 Seattle Journal for Social Justice 465 (Fall, 2016) The long and complex relationship between Native American tribes and the US government has created a variety of issues deeply entrenched in the historical tensions between the two parties. The ebb and flow of history has brought about waves of progress, contrasted with eras of great oppression and subjugation. In recent years, criminal... 2016
Patrice H. Kunesh Exploring the Intersection of Economic Development and Community Well-being in Indian Country 63-APR Federal Lawyer 34 (April, 2016) A few months ago, during a serious conversation about potential opportunities for growing tribal economies with financial and business stakeholders representing diverse segments of Indian Country, the question arose: How can Indian Country leverage its significant economic gains realized in the past few decades into lasting community well-being for... 2016
  Federal Indian Law 43 No.8 Preview of United States Supreme Court Cases 323 (8/1/2016) Overview: This case explored the authority of a tribal court to adjudicate civil tort claims brought by tribal members against a nontribal member, where: (1) the nonmember civil defendant is a corporation operating a retail store on tribal trust land, pursuant to a business license obtained from the tribal government; (2) the nonmember civil... 2016
  Federal Indian Law 43 No.8 Preview of United States Supreme Court Cases 323 (8/1/2016) Overview: This case involved the interpretation of 18 U.S.C. § 117(a), a section of the Violence Against Women and Department of Justice Reauthorization Act dealing directly with domestic violence perpetrated against Native American women. Particularly, this case examined whether Congress intended to allow the use of tribal court convictions for... 2016
Abilene Slaton Federal Statutory Responsibility and the Mental Health Crisis among American Indians 40 American Indian Law Review 71 (2015-2016) Suicides are occurring at an alarming rate among Indian populations. For example, years ago, on a reservation in North Dakota, a young American Indian girl suffered the loss by suicide of both her father and her sister. Soon after, she fell into a severe depression. For the next ninety days she lay in her bed in the fetal position, while no one... 2016
  Fresh Pursuit from Indian Country: Tribal Authority to Pursue Suspects onto State Land 129 Harvard Law Review 1685 (April, 2016) Around 1:30 a.m. on August 10, 2005, while on patrol in the Lummi Reservation, Officer Mike McSwain of the Lummi Nation Police Department observed a car driving toward him with its high beams on. As the car approached, the driver, later identified as Loretta Lynn Eriksen, failed to dim her lights in response to McSwain's signaling with his own high... 2016
Gail T. Kulick , Tadd M. Johnson , Rebecca St. George , Emily Segar-Johnson From Dysfunction and Polarization to Legislation: Native American Religious Freedom Rights and Minnesota Autopsy Law 42 Mitchell Hamline Law Review 1699 (2016) I. Introduction. 1700 II. Two Deaths, Two Court Orders. 1702 III. Why Tribal Religions Went Underground. 1708 IV. The Law in Minnesota. 1712 V. The Legislative Process. 1716 VI. Aftermath. 1720 2016
  Ftc Issues Long-awaited Native Advertising Guidance 21 No.1 Cyberspace Lawyer NL 3 (January/February 2016) On December 22, 2015, the Federal Trade Commission (FTC or Commission) issued long-awaited guidance on native advertisingcommercial content designed with the look and feel of editorial contentand published its Enforcement Policy Statement on Deceptively Formatted Advertisements[ ] (Policy Statement) and its Native Advertising: Guide for... 2016
Gonzalo E. Mon Ftc Seeks to Sharpen Blurred Lines with Guidance on Native Advertising 32-WTR Communications Lawyer Law. 4 (Winter, 2016) Howard Luck Gossage (1917--1969) once observed that nobody reads ads. Instead, people read what interests them, and sometimes it's an ad. If that was true in the era of Mad Men, it's certainly true today in the era of DVRs, spam filters, and ad blockers. With so many options for consumers to avoid ads, advertisers have been forced to come up... 2016
Judith Kimerling Habitat as Human Rights: Indigenous Huaorani in the Amazon Rainforest, Oil, and Ome Yasuni 40 Vermont Law Review 445 (Spring, 2016) Introduction. 445 I. Human Rights and the Environment. 446 II. The Huaorani, Chevron, and Yasuni. 450 A. When the Civilization and First Oil Company Arrived. 450 B. Petroleum Policy in Ecuador. 456 C. Amazon Policy in Ecuador. 458 D. Environmental Law and Impacts of Texaco's Operations in Ecuador. 463 E. Litigation in Texaco's Homeland. 469 F.... 2016
Alan Stay Habitat Protection and Native American Treaty Fishing in the Northwest 63-NOV Federal Lawyer 20 (October/November, 2016) In 1854, several Native American tribes occupied and sustained their lives and livelihood from lands and waters within in what is now the Northwestern portion of the United States. Fisheries, while occurring throughout their territories, were centered on the Columbia River, Puget Sound, the rivers and waters flowing into Puget Sound, and the ocean... 2016
Ajay Bhaskarabhatla, Chirantan Chatterjee, Bas Karreman, Erasmus School of Economics, Indian Institute of Management Bangalore, Erasmus School of Economics Hit Where it Hurts: Cartel Policing Using Targeted Sales and Supply Embargoes 59 Journal of Law & Economics 805 (November, 2016) In this paper, we examine an asymmetric-punishment strategy that a large and newly identified cartel of retailers uses to police its upstream suppliers and members. The cartel punishes suppliers who violate vertical restraints and members who defect in the key regional or product market where it hurts them the most. The cartel organizes sales... 2016
Sara Movahed Hope for the Hopi in a Post-hobby Lobby World: the Supreme Court's Recent Interpretation of Rfra and Strengthening Native Americans' Religious-based Land Rights Claims 31 Maryland Journal of International Law 244 (2016) Among the diverse array of Native American traditions, a unifying thread is the recognition that humans and our natural world are interdependent. This recognition extends beyond a mere superficial connection. It embodies a rich, deeply held belief that the physical and spiritual realms can unite in certain natural phenomena or locations. The fact... 2016
Jennifer Hendry , Melissa L. Tatum Human Rights, Indigenous Peoples, and the Pursuit of Justice 34 Yale Law and Policy Review 351 (Spring 2016) Introduction. 352 I. The Rights-Based Approach and Indigenous Alternatives. 354 A. The Functioning, Origins, and Critique of the Rights-Based Approach. 355 B. Indigenous Alternatives. 360 II. Failures of the Right-Based Approach. 364 A. Conflicts Between Sovereign Governments. 365 B. Disputes over Regulatory Issues. 368 C. Individual Claims. 370 D.... 2016
Maggie Logan Human Trafficking among Native Americans: How Jurisdictional and Statutory Complexities Present Barriers to Combating Modern-day Slavery 40 American Indian Law Review 293 (2015-2016) It is undeniable that human trafficking is a global enterprise that transcends all racial and geographic boundaries. [H]uman trafficking is the second largest criminal industry in the world and [it] is easily the fastest-growing. While much of the focus on human trafficking centers on its global effect, little attention is given to the rampant... 2016
Gregory D. Smith Icwa Adoptions an Indian Child Welfare Act Primer 5 Accord, A Legal Journal for Practitioners 81 (Spring, 2016) My. introduction to the Indian Child Welfare Act (ICWA) occurred in 1993 because of criminal charges being brought against Aaron V. Yelloweyes and his wife, Millie Rose Yelloweyes, both registered members of the Sioux Indian Nation, for. the first-degree murder of three-year-old Jeremiah Bringsplenty. The tragic scenario unfolded when Jeremiah's... 2016
Sherally Munshi Immigration, Imperialism, and the Legacies of Indian Exclusion 28 Yale Journal of Law & the Humanities 51 (Winter, 2016) In April of 1914, a few hundred men and women in Calcutta boarded a ship bound for Vancouver, though British Canada had recently enacted a law that would prevent the ship's passengers from landing. As the ship, the Komagata Maru, steamed its way across the Pacific, officials in Vancouver braced themselves for its arrival. For Canadian officials,... 2016
Cindy Campbell Implementing a Greener Redd+ in Black & White: Preserving Wounaan Lands and Culture in Panama with Indigenous-sensitive Modifications to Redd+ 40 American Indian Law Review 193 (2015-2016) Introduction. 194 I. The Effort to Preserve Wounaan Lands Before REDD+ Implementation. 197 A. The Wounaan Tribe of Darien, Panama. 198 B. REDD+ Solutions and REDD+ Problems. 201 1. The History of REDD+. 201 2. UN-REDD+ Implementation in Panama. 207 II. Existing Indigenous Protections Available to the Wounaan. 211 A. International Indigenous... 2016
Caroline M. Turner Implementing and Defending the Indian Child Welfare Act Through Revised State Requirements 49 Columbia Journal of Law and Social Problems 501 (Summer, 2016) The Indian Child Welfare Act, enacted in 1978, was designed to protect Indian children and enhance the stability of Indian tribes and families. It sets forth minimum federal standards applicable in proceedings involving the termination of parental rights, pre-adoption placement, and adoption placement. From its inception, there has been resistance... 2016
  Indian Law 43 No.8 Preview of United States Supreme Court Cases 328 (8/1/2016) Overview: Members of the Omaha Tribe occupy reservation land in Nebraska. In 1882, certain property on the reservation was opened to settlement by non-Indian settlers; since then, the land has been governed by the state of Nebraska. Litigation ensued after the Tribe imposed a liquor tax in the disputed area of the reservation. Individuals living in... 2016
William Wood Indians, Tribes, and (Federal) Jurisdiction 65 University of Kansas Law Review 415 (December, 2016) Land, and controlling what happens on it and the revenues from it, has always been the focal point of relations between Indigenous peoples and non-Natives in North America. Today, as many Indian tribes rebuild their land bases after centuries of dispossession, with the result that state and local governments generally lose jurisdiction over the... 2016
Fiona McCormack, University of Waikato Indigenous Claims: Hearings, Settlements, and Neoliberal Silencing 39 PoLAR: Political and Legal Anthropology Review 226 (November, 2016) This article investigates the double-edged potentiality of the Waitangi Tribunal, an indigenous claims forum in New Zealand, and combines an ethnographic background to a recent claim with an anthropological interpretation of the meanings and outcomes of this encounter. I suggest that the legal justice framework of the claims proceedings and the... 2016
Nicholas Kaldawi Indigenous Health Policy in the United States and Latin America: the Marshall Trilogy and the International Human Rights Approach 33 Arizona Journal of International and Comparative Law 481 (2016) C1-2Table of Contents I. Introduction. 482 A. The State of Indigenous Peoples' Health Today. 482 1. Why Latin America as a Basis for Comparison?. 484 II. The Marshall Trilogy in the United States. 485 A. Native American Health Prior to 1961. 485 B. The Marshall Model and Health in the Self-Determination Era. 488 III. Right to Healthcare and the... 2016
Rebecca Tsosie Indigenous Identity and Sports Mascots: the Battlefield of Cultural Production 63-MAR Federal Lawyer Law. 9 (March, 2016) On Jan. 1, 2017, California's Racial Mascots Act will go into effect, making the state the first in the country to impose a law precluding any public school from using the term redskins for school or athletic team names, mascots, or nicknames. California's law is a historic milestone because it classifies the term as racially derogatory and... 2016
Rebecca Tsosie Indigenous Identity, Cultural Harm, and the Politics of Cultural Production: a Commentary on Riley and Carpenter's "Owning Red" 94 Texas Law Review See Also 250 (2016) In Owning Red: A Theory of Indian (Cultural) Appropriation, Professors Angela Riley and Kristen Carpenter explore the contested nature of cultural appropriation in the context of recent controversies involving American Indian claims to ownership or control of tangible and intangible resources. Drawing on Federal Indian law and its history and... 2016
Anna Saraie Indigenous Interpretations of the Right to Education Incorporating Gandhi's Visionary Philosophy to Educational Reform 30 Emory International Law Review 501 (2016) Since the 1940s, there has been a growing movement for the promotion of education. There is now an obligation in the international community to ensure that every child has the resources to exercise his or her right to education. Two problems have emerged from this obligation. First, international agreements define the right to education ambiguously... 2016
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