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
Leah K. Jurss TELLING STORIES IN COUNCIL AND COURT: DEVELOPING A REFLECTIVE TRIBAL GOVERNANCE 10 Albany Government Law Review 157 (2017) You can't understand the world without telling a story. There isn't any center to the world but a story. For many indigenous peoples, story holds a multitude of meanings. There are old stories; throwback traditional stories; stories that hold within them time immemorial. There are new stories; stories that modernize the old stories; stories that... 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
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
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
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
Professor Steven H. Hobbs THE TRIBES OF MAYCOMB COUNTY: THE CONTINUING QUEST TO TRANSCEND OUR DIFFERENCES 47 Cumberland Law Review 61 (2016-2017) We are a tribal people, we Americans, in spite of our national motto: E pluribus unum. We are subdivided by race, class, culture, religion, education, physical and mental health, and so much more. While multiculturalism is said to be enriching and empowering to our communal life, our celebration of diversity seldom permits us to totally look beyond... 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
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