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
Jordan Gross THROUGH A FEDERAL HABEAS CORPUS GLASS, DARKLY --WHO IS ENTITLED TO EFFECTIVE ASSISTANCE OF COUNSEL IN TRIBAL COURT UNDER ICRA AND HOW WILL WE KNOW IF THEY GOT IT? 42 American Indian Law Review 1 (2017) C1-2Table of Contents Introduction. 2 I. Constitutional Regulation of Defense Counsel in State and Federal Court. 7 A. An Evolving Standard--From Due Process Farce and Mockery to Sixth Amendment Effectiveness. 7 B. Strickland v. Washington--The Court Settles on a Sixth Amendment Standard. 12 1. Strickland Deficient Performance. 16 2. Strickland... 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
Marcia Zug TRADITIONAL PROBLEMS: HOW TRIBAL SAME-SEX MARRIAGE BANS THREATEN TRIBAL SOVEREIGNTY 43 Mitchell Hamline Law Review 761 (2017) I. Introduction. 761 II. Same-Sex Marriage in Indian Country. 768 III. Tribal Sovereignty, Tradition, and Unfairness. 773 A. Interpreting Santa Clara Pueblo v. Martinez. 774 B. The Cherokee Freedmen. 777 IV. Tribal Traditions and Fairness. 783 A. Crow Dog and Tribal Justice. 784 B. Mississippi Band of Choctaw Indians v. Dollar General Corp. 787 1.... 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
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
Monique Kreisman UNITED STATES v. BRYANT, FEDERAL HABITUAL OFFENDER LAWS, AND THE RIGHTS OF DEFENDANTS IN TRIBAL COURTS: A BETTER SOLUTION TO DOMESTIC VIOLENCE EXISTS 39 Campbell Law Review 205 (Winter, 2017) If you cannot afford an attorney, one will be appointed for you. Since Miranda v. Arizona, that popularized phrase has widely been regarded as true in the United States. However, because the Bill of Rights does not apply to Native American tribes, defendants in tribal courts are regularly sentenced to imprisonment without the aid of counsel. One... 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
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
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
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