Matthew H. Birkhold Judging "Indian Character"? The Supreme Court's Opportunity in Nebraska V. Parker 2016 Wisconsin Law Review Forward 21 (2016) When the English arrived in the New World in the seventeenth century, they viewed the land as empty, unused, and unclaimed--a vacuum domicilium that legally justified their usurpation of the land. Nearly four hundred years later, we have come to appreciate that Native Americans stood in various agricultural, economic, spiritual, and... 2016
Judge Beth A. Gibson Justice in Indian Country 55 No.4 Judges' Journal J. 1 (Fall, 2016) An often forgotten facet of our nation's legal community includes a rich tapestry of tribal courts, all uniquely reflective of their own tribes' rich history and culture. Our authors in this issue share a glimpse into not only the history and culture of Indian Country, but also how it intersects with federal and state law. We start with our... 2016
Laura Choi Law for "Aliens and Strangers": Examining the Foreign Commerce Clause Through the Lens of Indian Commerce Clause Law 69 SMU Law Review 533 (Spring 2016) IN 2004, Larry Bollinger, a Lutheran minister, moved from his home in North Carolina to a community outside Port-au-Prince, Haiti, where he had been hired to oversee a religious ministry known as the Lazarus Project. The Project included a school and a health center that served local communities and was funded by non-Haitian donors who believe[d]... 2016
Siddharth Mohansingh Akali Learning from Suresh Kumar Koushal V. Naz Foundation Through Introspection, Inclusion, and Intersectionality: Suggestions from Within Indian Queer Justice Movements 31 Berkeley Journal of Gender, Law & Justice 121 (Winter, 2016) I. Introduction. 122 A. A Discussion of Terms and Their Usage. 124 B. Roadmap. 126 II. Section 377, Related Constitutional Challenges, and Reactions to Court Cases. 127 A. Overview of Section 377 and Its Interpretation by Indian Courts. 127 B. Case Summaries: Recent Constitutional Challenges Related to Sexual Orientation and Gender Identity. 129 1.... 2016
Rachel Sieder Legal Pluralism and Indigenous Women's Rights in Mexico: the Ambiguities of Recognition 48 New York University Journal of International Law & Politics 1125 (Summer 2016) I. Introduction. 1125 II. Legal Pluralism in Latin America. 1127 III. Recognition of Legal Pluralism in Mexico. 1132 IV. Indigenous Women in the 2001 Constitutional Reform Debates. 1134 V. Subnational Reforms. 1136 VI. Case Studies. 1138 A. Rights to Political Participation: The Case of Eufrasina Cruz Mendoza. 1138 B. Rights to Physical Security:... 2016
Jordan Gross Let the Jury Fit the Crime: Increasing Native American Jury Pool Representation in Federal Judicial Districts with Indian Country Criminal Jurisdiction 77 Montana Law Review 281 (Summer, 2016) The very idea of a jury is that it is a body composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds. Batson v. Kentucky, 476 U.S. 79, 86 (1986). Federal law allocates jurisdiction to... 2016
Hon. Gustavo A. Gelpí, Dawn Sturdevant Baum Manifest Destiny: a Comparison of the Constitutional Status of Indian Tribes and U.s. Overseas Territories 63-APR Federal Lawyer 38 (April, 2016) Comparing and contrasting the status of U.S. Overseas Territories and Indian tribes bring about profound legal questions. The subject is currently particularly ripe for discussion. On Jan. 15, 2015, the U.S. House of Representatives Natural Resources Committee reorganized Indian, Insular, and Alaska Native Affairs into a single subcommittee,... 2016
  Menominee Indian Tribe of Wisconsin V. United States of America, et Al. (14-510) 63-APR Federal Lawyer 73 (April, 2016) The U.S. Supreme Court will decide whether the D.C. Circuit misapplied the Court's decision in Holland v. Florida when the D.C. Circuit ruled that the statute of limitations was not subject to equitable tolling for the Menominee Indian Tribe of Wisconsin's (the tribe) 1996-98 claims for contract support costs. The tribe argues that despite the D.C.... 2016
Shalanda H. Baker Mexican Energy Reform, Climate Change, and Energy Justice in Indigenous Communities 56 Natural Resources Journal 369 (Summer, 2016) Mexico's recent energy reform portends a new era of private engagement in the oil and gas sectors. According to government officials and industry leaders, the opening of energy reserves for private development will spur economic growth and establish the country as a leader in the energy arena. This article examines whether the reforms could also... 2016
Kevin P. Ray Nagpra and its Limitations: Repatriation of Indigenous Cultural Heritage 15 John Marshall Review of Intellectual Property Law 472 (2016) I. Introduction. 473 II. The Troubled History of Collecting Native American Cultural Items. 473 III. NAGPRA. 475 IV. Kennewick Man and Native American. 476 V. Jim Thorpe--Privileging the Nuclear Family over Tribal Association. 480 A. Whale House Artifacts. 482 VI. Hopi Katsinam Auctions. 484 VII. Conclusion. 485 2016
Greg Victoroff Narrative of My Captivity among the Sioux Indians by Fanny Kelly Wilstach, Baldwin, 1871 $.99 (Kindle), 196 Pages 39-MAY Los Angeles Lawyer 35 (May, 2016) History often presents stories about books that rival those of the books themselves. Fanny Kelly's nonfiction book is a harrowing first-person account of capture, survival, and escape. The reserved and refined Victorian-era voice of Narrative of My Captivity among the Sioux Indians often starkly contrasts with the facts she recounts. Although her... 2016
Lindsey Ratcliff Native American Law Students Association, Natural Resources and Environmental Law Society, and the University of Denver Water Law Review Panel 20 University of Denver Water Law Review 125 (Fall, 2016) On September 27, 2016, the University of Denver Sturm College of Law (DU) hosted a panel discussion about the current legal fight over the Dakota Access Pipeline in North Dakota. The panel addressed legal, historical, social justice, and environmental justice topics related to the dispute. The discussion was co-sponsored by DU's Natural Resources... 2016
Adair Martin Smith Native American Use of Eagle Feathers under the Religious Freedom Restoration Act 84 University of Cincinnati Law Review 575 (2016) The bald eagle is one of the greatest national symbols in the United States of America, and it has become synonymous with words like freedom, justice, and liberty. Accordingly, the United States government has outlawed the possession of both bald and golden eagle feathers in order to protect this treasured animal. One exception to this prohibition... 2016
Monte Mills New Approaches to Energy Development in Indian Country 63-APR Federal Lawyer 50 (April, 2016) The challenging and often conflicting forces of history, precedent, colonization, self-determination, and the federal government's trust responsibility to Indian tribes make for many crossroads within the field of federal Indian law. Scholars and practitioners have struggled with a number of these intersections, including animal law in Indian... 2016
Thomas M. Antkowiak Nicaragua's Canal Initiative Endangers the Rights of Indigenous and Afro-caribbean Communities 47 University of the Pacific Law Review 233 (2016) I. Introduction. 233 II. The Right to Property in the Inter-American Human Rights System. 233 III. Plans for the Canal and Nicaragua's International Legal Obligations. 239 IV. Conclusion. 241 This Essay Examines The Trailblazing Approach To Communal Property In The Inter-american Human Rights System, And Then Applies That Legal Framework To The... 2016
Joel Pruett NOTHING PERSONAL (OR SUBJECT MATTER) ABOUT IT: JURISDICTIONAL RISK AS AN IMPETUS FOR NON-TRIBAL OPT-OUTS FROM TRIBAL ECONOMIES, AND THE NEED FOR ADMINISTRATIVE RESPONSE 40 American Indian Law Review 131 (2015-2016) Tribal civil jurisdiction, as it pertains to non-tribal investors, is too complicated. The current scheme, which has been called an unstable jurisdictional crazy quilt and a procedural and jurisdictional nightmare, damages tribal economies and frustrates Congress's twin goals of [tribal] economic self-sufficiency and political... 2016
Randall S. Abate Ocean Iron Fertilization and Indigenous Peoples' Right to Food: Leveraging International and Domestic Law Protections to Enhance Access to Salmon in the Pacific Northwest 20 UCLA Journal of International Law and Foreign Affairs 45 (Spring, 2016) Ocean iron fertilization (OIF) is a new and controversial climate change mitigation strategy that seeks to increase the carbon-absorbing capacity of ocean waters by depositing significant quantities of iron dust into the marine environment to stimulate the growth of phytoplankton blooms. The photosynthetic processes of these blooms absorb carbon... 2016
Thomas E. Simmons Oklahoma Tax Commission V. United States: Death Taxes on Restricted Indian Personalty 42 ACTEC Law Journal 47 (Spring, 2016) In Oklahoma Tax Commission v. United States, the United States Supreme Court upheld the application of a state inheritance tax to the restricted personalty of deceased tribal members. The case turned on statutory construction. The question: Had Congress withheld from Oklahoma the power to tax Native Americans' estates? Justice Hugo Black, writing... 2016
Eleanor Marie Lawrence Brown On Black South Africans, Black Americans, and Black West Indians: Some Thoughts on We Want What's Ours 114 Michigan Law Review 1037 (April, 2016) We Want What's Ours: Learning from South Africa's Land Restitution Program. By Bernadette Atuahene. Oxford and New York: Oxford University Press. 2014. Pp. viii, 198. $42.50. Most modern constitutions have eminent domain provisions that mandate just compensation for forced deprivations of land and require such deprivations to be for a public use or... 2016
Esmeralda Lopez, Melissa Hastings Overlooked and Unprotected: Central American Indigenous Migrant Women in Mexico 48 New York University Journal of International Law & Politics 1105 (Summer 2016) I. Introduction. 1105 II. Background. 1106 A. Increase in Migration from the Northern Triangle. 1107 B. Indigenous Peoples in the Northern Triangle. 1108 III. Refugee Rights. 1109 A. International Protection. 1109 B. Mexico's Asylum Law. 1111 IV. Legal Pluralism. 1111 A. Indigenous Peoples' Rights in International Law. 1111 B. Mexican Law & The... 2016
Angela R. Riley , Kristen A. Carpenter Owning Red: a Theory of Indian (Cultural) Appropriation 94 Texas Law Review 859 (April, 2016) In a number of recent controversies, from sports teams' use of Indian mascots to the federal government's desecration of sacred sites, American Indians have lodged charges of cultural appropriation or the unauthorized use by members of one group of the cultural expressions and resources of another. While these and other incidents make... 2016
Ellen Goodman , Rick Kurnit , Shelly Paioff , Jeremy Sheff , Po Yi , Felix Wu (Moderator) Panel 2: Native Advertising 34 Cardozo Arts and Entertainment Law Journal 580 (2016) Stella Silverstein: My name is Stella Silverstein and I am the Symposium Editor of AELJ. I'm thrilled that you're here. I'd like to welcome you to our second and final panel of the day, which is going to focus on native advertising law. Our moderator is Felix Wu. He is a Co-director of the IP and Information Law program and a Faculty Director of... 2016
Ian Vincent McGonigle Patenting Nature or Protecting Culture? Ethnopharmacology and Indigenous Intellectual Property Rights 3 Journal of Law & the Biosciences 217 (April, 2016) Ethnopharmacologists are scientists and anthropologists that study indigenous medicines and healing practices, and who often develop new therapies and medicines for wider use. Ethnopharmacologists do fieldwork with indigenous peoples in traditional societies, where they encounter a wide range of cultural values and varying ideas about the nature of... 2016
Grant Christensen Personal Jurisdiction and Tribal Courts after Walden and Bauman: the Inadvertent Impact of Supreme Court Jurisdictional Decisions on Indian Country 68 Rutgers University Law Review 1367 (Spring, 2016) In 2014, the United States Supreme Court decided two new opinions helping to define and clarify the contours of personal jurisdiction. These cases are just the latest in a litany of decisions spanning almost a century and a half where the Supreme Court has articulated when the due process rights of the defendant have been violated in the context of... 2016
Michalyn Steele Plenary Power, Political Questions, and Sovereignty in Indian Affairs 63 UCLA Law Review 666 (March, 2016) A generation of Indian law scholars has roundly, and rightly, criticized the Supreme Court's invocation of the political question and plenary power doctrines to deprive tribes of meaningful judicial review when Congress has acted to the tribes' detriment. Courts have applied these doctrines in tandem so as to frequently leave tribes without... 2016
Alex T. Skibine Practical Reasoning and the Application of General Federal Regulatory Laws to Indian Nations 22 Washington and Lee Journal of Civil Rights and Social Justice 123 (Spring 2016) I. Introduction. 124 II. Interpreting Silence in the Circuits. 130 A. Silence as a Presumption of Applicability. 130 1. The Ninth Circuit Intramural Aspects Approach. 130 2. Evaluating the Intramural Aspects Approach. 131 3. The D.C. Circuit Spectrum of Sovereignty Approach. 135 4. Evaluating the Spectrum of Sovereignty Approach. 137 B.... 2016
Carole Goldberg President Nixon's Indian Law Legacy: a Counterstory 63 UCLA Law Review 1506 (August, 2016) Scholars of Federal Indian law have often celebrated President Richard Nixon for advancing tribal interests through legislation and policy initiatives. Far less attention has been paid to his impact on Federal Indian law through the appointments he made to the U.S. Supreme Court. During the time his four appointees served together, the Supreme... 2016
Reid Peyton Chambers, William F. Stephens Principles of International Law That Support Claims of Indian Tribes to Water Resources 63 UCLA Law Review 1530 (August, 2016) A growing body of international legal principles recognizes the right of indigenous people to water resources as a key component of their rights to self-determination, land, and economic self-sufficiency. These legal norms impose obligations on states both to recognize this right and to take affirmative steps to allow indigenous people to realize... 2016
William M. Haney Protecting Tribal Skies: Why Indian Tribes Possess the Sovereign Authority to Regulate Tribal Airspace 40 American Indian Law Review Rev. 1 (2015-2016) Since the advent of human flight, lawmakers in the United States have struggled to keep pace with advancements in aviation technology. Similarly, many doctrines of federal Indian law that govern the exercise of the sovereign powers of Indian tribes in the United States are based on outmoded conceptions of the capabilities and interests of Indian... 2016
John Sky Starkey Protection of Alaska Native Customary and Traditional Hunting and Fishing Rights Through Title Viii of Anilca 33 Alaska Law Review 315 (December, 2016) This paper analyzes the degree to which the administration of Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) of 1980 protects customary and traditional hunting and fishing by Alaska Natives and their tribal communities. A recent Memorandum of Understanding (MOU) entered into by the United States Fish and Wildlife Service... 2016
Evan Way Raising Capital in Indian Country 41 American Indian Law Review 167 (2016) This comment discusses improving economic development in Indian Country by increasing capital investment using three avenues: (1) tribes should incorporate their business entity under Delaware law and issue securities, specifically common stock; (2) tribes should petition the Securities and Exchange Commission (SEC) to promulgate a final rule to... 2016
Addie C. Rolnick RECENTERING TRIBAL CRIMINAL JURISDICTION 63 UCLA Law Review 1638 (August, 2016) The boundaries of modern tribal criminal jurisdiction are defined by a handful of clear rules--such as a limit on sentence length and a categorical prohibition against prosecuting most non-Indians--and many grey areas in which neither Congress nor the Supreme Court has specifically addressed a particular question. This Article discusses five of the... 2016
Jeanette Wolfley Reclaiming a Presence in Ancestral Lands: the Return of Native Peoples to the National Parks 56 Natural Resources Journal 55 (Winter, 2016) For Native peoples, sacred sites and other traditional cultural properties are of critical importance to the preservation of their culture, society, and overall tribal sovereignty. Often these traditional cultural resources are part of present day national park landscapes. Today, tribes have unprecedented opportunities to reclaim a presence on... 2016
  Religious Freedom Restoration Act--substantial Burden--ninth Circuit Holds That Federal Cannabis Prohibition Is Not a Substantial Burden.--oklevueha Native American Church of Hawaii, Inc. V. Lynch, 828 F.3d 1012 (9th Cir. 2016) 130 Harvard Law Review 785 (December, 2016) In response to the Supreme Court's interpretation of the Free Exercise Clause in Employment Division v. Smith, Congress enacted the Religious Freedom Restoration Act (RFRA), which requires judges to impose strict scrutiny on federal government action that substantially burdens the exercise of religion. Because the substantial burden inquiry... 2016
Erin J. Greten , Ernest B. Abbott REPRESENTING STATES, TRIBES, AND LOCAL GOVERNMENTS BEFORE, DURING, AND AFTER A PRESIDENTIALLY-DECLARED DISASTER 48 Urban Lawyer 489 (Summer, 2016) When responding to a man-made or natural event, time is a valuable, yet limited resource. In the aftermath of a disaster, it is critical for local governments to take rapid action to save lives, protect property, and protect the public health and safety. Communities do so through actions such as ordering evacuations, establishing shelters,... 2016
Andrew Keenan Restoring the Native American Trust? 17 Rutgers Race & the Law Review 221 (2016) The utmost good faith shall always be observed toward the Indians; their land and property shall never be taken away from them without their consent but laws founded in justice and humanity shall from time to time be made, for preventing wrong to them. As the Department of Interior and Bureau of Indian Affairs move forward with revisions to the... 2016
Sarah Beebe , Christine Florick Nishimura Right of Limited English Proficient Students with Disabilities and Their Parents to Be Served in Their Native Language 21 Texas Journal on Civil Liberties & Civil Rights 127 (Spring 2016) I. Introduction. 128 II. English Language Learners in Special Education. 130 A. Identification. 131 B. Appropriate Assessment. 133 C. Meeting the Instructional Needs of ELL Students and ELL Students with Disabilities. 136 III. Limited English Proficient Parents of Students with Disabilities. 140 IV. Legal Remedies to Address School Districts'... 2016
John W. Ragsdale, Jr. Sacred in the City: the Huron Indian Cemetery and the Preservation Laws 48 Urban Lawyer 67 (Winter, 2016) The Huron Indian Cemetery sits on a hill above the confluence of the Missouri and Kansas Rivers. It is several acres of predominant green, with grass, mature trees, and modest, weathered gravestones, surrounded by the sterile concrete of a struggling Midwestern city. Desultory businesses, colorless governmental offices, a casino, and strong... 2016
  Securing Indian Voting Rights 129 Harvard Law Review 1731 (April, 2016) Naomi White resides outside Window Rock, Arizona, an area within the Navajo Nation so rural that the Postal Service does not provide home delivery. Because White's voter-registration application bore a physical address that was too obscure, the Apache County Recorder, the agency charged with election administration for the county, could not... 2016
Kent McNeil Sovereignty and Indigenous Peoples in North America 22 U.C. Davis Journal of International Law and Policy 81 (Spring 2016) I. Introduction. 82 II. Defining Sovereignty. 82 III. Political Authority in Western Europe and Indigenous North America. 88 A. Western Europe. 88 B. Indigenous North America. 90 IV. De Facto Versus De Jure Sovereignty. 94 V. Defining De Facto Sovereignty. 100 VI. Conclusion. 103 2016
Robert T. Anderson Sovereignty and Subsistence: Native Self-government and Rights to Hunt, Fish, and Gather after Ancsa 33 Alaska Law Review 187 (December, 2016) The Alaska Native Claims Settlement Act (ANCSA) was passed in 1971 to extinguish aboriginal rights of Alaska Natives and provide compensation for those rights extinguished. Instead of vesting assets (land and money) in tribal governments, Congress required the formation of Alaska Native corporations to receive and hold these assets. A major flaw in... 2016
William H. Holley Starting from Scratch: Reasserting "Indian Country" in Alaska by Placing Alaska Native Land into Trust 11 Florida A & M University Law Review 333 (Spring, 2016) Abstract. 301 Introduction. 303 I. The Present Scheme of Native Land Ownership in Alaska. 305 A. The Legal Trajectory of Native Land Ownership in Alaska. 306 1. The Alaska Native Claims Settlement Act. 307 2. The Venetie Indian Country Decision. 309 B. The Practical Impact of ANCSA. 311 1. Poverty in Rural Alaska. 311 2. Policing Rural Alaska. 313... 2016
  Statute of Limitations 43 No.8 Preview of United States Supreme Court Cases 335 (8/1/2016) Overview: The petitioner is the Menominee Indian Tribe of Wisconsin, a federally recognized Indian tribe. It claimed that the federal government breached its obligations under the Indian Self-Determination and Education Assistance Act (ISDA), 25 U.S.C. §§ 450 et seq., by not fully funding tribal support costs under the ISDA. The liability of the... 2016
Radhika Singha The "Rare Infliction": the Abolition of Flogging in the Indian Army, circa 1835-1920 34 Law and History Review 783 (August, 2016) the very rarity is argument for retention On September 2, 1920, an amendment to the Indian Army Act abolished corporal punishment for the Indian soldier and follower and introduced field punishment as a substitute on active service. This emancipation from the lash and the rattan came approximately 40 years after flogging had been abolished for... 2016
William Robinson The Benefits of a Benefit Corporation Statute for Alaska Native Corporations 33 Alaska Law Review 329 (December, 2016) In the forty-five years since the Alaska Native Claims Settlement Act (ANCSA) created the Alaska Native regional corporation and village corporations, shareholders and outside observers have criticized the statute's use of the traditional corporate form as inappropriate for Alaska Native communities. The emergence of the benefit corporation entity... 2016
Arnold W. Reitze, Jr. The Control of Air Pollution on Indian Reservations 46 Environmental Law 893 (Fall, 2016) Changes in oil and gas production technology in recent years led to a substantial increase in domestic oil and gas production. This production reduced the nation's dependence on imported fuel, but it has resulted in serious air pollution problems developing in rural areas of the western United States, including Indian lands. The lack of effective... 2016
Carly Elizabeth Souther The Cruel Culture of Conservation Country: Non-native Animals and the Consequences of Predator-free New Zealand 26 Transnational Law & Contemporary Problems 63 (Winter 2016) New Zealand is regarded as an international leader in animal protection because of its progressive welfare laws, which explicitly recognize animal sentience and prohibit unnecessary animal suffering. Yet the well-being of invasive species--specifically, non-native mammals--remains unprotected and undesirable. New Zealand prides itself on... 2016
  The Double Life of International Law: Indigenous Peoples and Extractive Industries 129 Harvard Law Review 1755 (April, 2016) Now is an explosive time in international law. It is a time in which the common interest of international society is being dramatically restructured as new forces and legal standards shape the way human communities think and act. Of these forces, two are particularly noteworthy: the incorporation of indigenous protections into international law as... 2016
Geneva E.B. Thompson The Double-edged Sword of Sovereignty by the Barrel: How Native Nations Can Wield Environmental Justice in the Fight Against the Harms of Fracking 63 UCLA Law Review 1818 (August, 2016) Natural resource extraction has become an appealing form of economic growth for many Native nations. Nations have experienced booming economic growth and prosperity from oil and gas development, but this has come at the expense of environmental and social harms to their communities. These environmental and social harms develop because the oil and... 2016
Elizabeth Lohah Homer The Dynamic Legal Environment of Daily Fantasy Sports 41 American Indian Law Review 219 (2016) Up until the fall of 2015, Daily Fantasy Sports (DFS) in the United States had benefited from a rapid growth in revenue, an increasing acceptance into the American sports landscape, and scant regulation from state and federal governments. A respectable research firm in the gaming world projected unmitigated growth for 2016 until a mixture of... 2016
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