Dwight Newman The Economic Characteristics of Indigenous Property Rights: a Canadian Case Study 95 Nebraska Law Review 432 (2016) C1-3TABLE OF CONTENTS I. Introduction. 433 II. The Nature of Aboriginal Title Within the Canadian Judicial Interpretation. 439 A. Background. 439 B. The Aboriginal Title Test. 442 C. The Contents of Aboriginal Title. 449 D. Inherent Limits on Scope of Aboriginal Title. 450 E. The Security and Insecurity of Aboriginal Title. 454 F. The Implications... 2016
Adam Mendel The First Aumf: the Northwest Indian War, 1790-1795, and the War on Terror 18 University of Pennsylvania Journal of Constitutional Law 1309 (April, 2016) On September 29, 1789, while various state militias were involved in hostilities with the Indian tribes and with very little attention, Congress passed a bill to reorganize the federal military and allow President Washington to call upon state militias to protect the frontier from Indian incursions. While President Washington did not immediately... 2016
Cindy S. Woods The Great Sioux Nation V. the "Black Snake": Native American Rights and the Keystone Xl Pipeline 22 Buffalo Human Rights Law Review 67 (2015-2016) The Keystone XL Pipeline has been shrouded in controversy almost since its conception. As a structure intending to cross the Canadian border into the United States, the Pipeline must receive presidential approval before construction can commence. Since 2008, TransCanada has attempted to obtain this approval unsuccessfully. Criticism against the... 2016
Neil B. Nesheim The Indigenous Practice That Is Transforming the Adversarial Process 55 No.4 Judges' Journal 16 (Fall, 2016) As humans, we are always on the lookout for that aha! moment. In the judicial arena, it is that time in a case or in your career when you witness and are part of a jaw-dropping, awe-inspiring, life-changing, what-did-I-just-experience? event. Have one of those moments and your adrenaline pumps, your motivational level skyrockets, and you realize... 2016
Mya L. Johnson The Lack of Trust in a Trust Relationship: Indian Affairs and the Federal Government 42 Thurgood Marshall Law Review Online Online 3 (Fall, 2016) Imagine if the government controlled everything you owned, everything you loved. Imagine if the government were responsible for looking after your best interests. Imagine if the government mismanaged your assets and land, holding you within the reach of poverty and subpar health. This nightmare is the reality for many American Indians, and their... 2016
Dylan R. Hedden-Nicely The Legislative History of the Mccarran Amendment: an Effort to Determine Whether Congress Intended for State Court Jurisdiction to Extend to Indian Reserved Water Rights 46 Environmental Law 845 (Fall, 2016) The year 1976 marked a sea change in federal policy regarding the treatment of American Indian tribes and their water rights. In that year, the Supreme Court of the United States was called upon to determine the scope of the McCarran Amendment, a rider on a federal appropriations bill that waived the sovereign immunity of the United States in state... 2016
Ambika Sahai , Kruthika N. S. The Need for Compulsory Licensing of Antiretroviral Drugs: the Indian Perspective 16 Wake Forest Journal of Business and Intellectual Property Law 241 (Winter, 2016) I. Introduction. 242 II. The Pervasiveness of the Disease in India. 243 III. The Changes in International Trade Law: Influencing the Path of ART. 247 IV. Compulsory Licensing under the TRIPS Regime. 249 V. Compulsory Licensing: How Viable a Solution?. 250 A. Foreign Relations Affecting Foreign Direct Investment. 251 B. Fear to File Applications for... 2016
Loretta Tuell The Obama Administration and Indian Law--a Pledge to Build a True Nation-to-nation Relationship 63-APR Federal Lawyer 44 (April, 2016) The historic words I am President Barack Black Eagle resonated throughout Indian Country. Never had a president of the United States embraced the trust relationship in such a bold manner. Yet, from his initial 2008 visit to the Crow Nation in Montana, then-candidate Sen. Barack Obama understood the power of the pulpit and imagery. On May 19,... 2016
Rebecca Tsosie The Politics of Inclusion: Indigenous Peoples and U.s. Citizenship 63 UCLA Law Review 1692 (August, 2016) This Article explores the dynamics of U.S. citizenship and indigenous self-determination to see whether, and how, the two concepts are in tension and how they can be reconciled. The Article explores the four historical frames of citizenship for indigenous peoples within the United States--treating indigenous peoples as citizens of separate nations,... 2016
James Hall The Promise Zone Initiative and Native American Economic Development: Only the First Step Forward Toward the Promise of a Brighter Future 40 American Indian Law Review 249 (2015-2016) The Choctaw Nation of Oklahoma is nestled in the southeastern corner of the state, spanning across over 10,000 square miles of rolling green hills in the picturesque Ouachita Mountain Range. Despite its natural beauty, the region's stagnant economy is indicative of the plight of many Native American communities throughout the country. The Choctaw... 2016
Laura Sigler The Saga Continues: the Redskins, Blackhorse, and the Future of Native American Trademarks in Sports 62 Wayne Law Review 73 (Spring, 2016) I. Introduction. 73 II. Background. 74 III. Analysis. 83 A. Trademark Disparagement Post-Harjo. 83 B. Blackhorse v. Pro. Football, Inc.. 84 C. The District Court Appeal. 88 D. The Circuit Court Appeal and the Tensions that Remain. 91 1. Substantial Composite of the Referenced Group. 91 2. The Laches Defense. 93 3. The First Amendment Challenge. 95... 2016
Alina Yohannan The Standing Rock Sioux Indians: an Inconvenience for the Black Gold 6 University of Baltimore Journal of Land and Development 19 (Fall, 2016) The issue of the Native American (Indian) tribes' rights to their lands started with the application of the European doctrine of discovery, continued with series of wars and population decimations, and finished with broken treaties and territorial occupations. After centuries of struggle for land and sovereignty, Indians still fight for their... 2016
Mirko Bagaric Three Things That a Baseline Study Shows Don't Cause Indigenous Over-imprisonment; Three Things That Might but Shouldn't and Three Reforms That Will Reduce Indigenous over-imprisonment 32 Harvard Journal on Racial & Ethnic Justice 103 (Spring, 2016) Indigenous offenders are grossly over-represented in Australian prisons. It is a problem that has persisted for many years and in fact has worsened over the past few decades. Few pragmatic reforms to the sentencing system have been suggested or implemented. To some extent, this is because the reasons for the problem are not clear. Previous... 2016
Lauren Carini Too Much to Handle: Illegal Migration Harms "Natives" on the Migrant Island 26 Transnational Law & Contemporary Problems 149 (Winter 2016) I. The Problem: The Current Migrant Influx Takes Atoll on the Migrant Island. 150 II. Background, History, and Political Context. 152 A. Sicily as Part of Italy. 152 B. The Current Political Debate in Italy. 152 C. Immigration to Italy: A Historical Perspective. 154 III. Three Levels of Legal Obligations. 157 A. Obligations Under the United... 2016
Alison Dundes Renteln, Professor of Political Science, Anthropology, Law, and Public Policy, University of Southern California Toward Comparative Jurisprudence: Differing Approaches to Culture in Law and Society Scholarship Law and the Culture of Israel. By Menachem Mautner. Oxford: Oxford University Press, 2011. 280 Pp. $71 Hardback. Indigenous People, Crime, and Punishment. By 50 Law and Society Review 1037 (December, 2016) In the twenty-first century, governments wrestle with the question of how to make sense of law in a multicultural world. As they figure out proper interpretations of cultural conflicts, these matters often emerge in the courtroom. Meanwhile researchers in comparative jurisprudence, criminology, and postcolonial studies explore the degree to which... 2016
J. Matthew Martin , Susan Crotty Traffic Safety in Indian Country 55 No.4 Judges' Journal 31 (Fall, 2016) The U.S. House and Senate emerged in late 2015 from conference committee with a five-year transportation bill, which was quickly enacted and became the first long-term transportation legislation in more than a decade. Discouragingly named the FAST Act (Fixing America's Surface Transportation Act ) and 1,300 pages long, the $305 billion bill... 2016
Alexandra Winters Trespass to Culture: the Bioethics of Indigenous Populations' Informed Consent in Mainstream Genetic Research Paradigms 41 American Indian Law Review 231 (2016) Today, genetic research is considered of vital importance in the fight against many diseases. Researchers use genes to study diseases such as diabetes, asthma, and leukemia. The indigenous populations of the world are often identified as ideal sample populations for these studies because of their isolation and the effect that isolation has on their... 2016
  TRIBAL EXECUTIVE BRANCHES: A PATH TO TRIBAL CONSTITUTIONAL REFORM 129 Harvard Law Review 1662 (April, 2016) In the modern era, tribes have made tremendous gains in retaining--and reclaiming--their sovereignty. But despite this external progress, some tribes have struggled to overcome internal governance challenges. One such challenge is presented by IRA constitutions: those constitutions either passed in the period shortly after adoption of the federal... 2016
Gavin Clarkson , Alisha Murphy TRIBAL LEAKAGE: HOW THE CURSE OF TRUST LAND IMPEDES TRIBAL ECONOMIC SELF-SUSTAINABILITY 12 Journal of Law, Economics & Policy 177 (Spring 2016) Gallup, New Mexico, is a border town just outside the Navajo Nation reservation with an estimated 22,000 residents; however, that number nearly triples on the first of the month. Social Security checks are distributed to elders and veterans on the first of the month, and most tribal members have neither access to a local bank nor sufficient... 2016
Lindsay Cutler TRIBAL SOVEREIGNTY, TRIBAL COURT LEGITIMACY, AND PUBLIC DEFENSE 63 UCLA Law Review 1752 (August, 2016) In June 2016, the Supreme Court held in United States v. Bryant that uncounseled tribal court convictions could serve as predicate offenses under 18 U.S.C. § 117(a). Citing the public safety crisis in Indian country, the limitations of tribal court sentencing, and the legislative history of Section 117(a), the Court upheld the federal statute... 2016
Addie C. Rolnick Untangling the Web: Juvenile Justice in Indian Country 19 NYU Journal of Legislation and Public Policy 49 (2016) The juvenile justice system in Indian country is broken. Native youth are vulnerable and traumatized. They become involved in the system at high rates, and they are more likely than other youth to be incarcerated and less likely to receive necessary health, mental-health, and education services. Congressional leaders and the Obama administration... 2016
Jason Corcoran Roberts Unwinding Non-native Control over Native America's Past: a Statistical Analysis of the Decisions to Return Native American Human Remains and Funerary Objects under the Native American Graves Protection and Repatriation Act, 1992-2013 38 University of Hawaii Law Review 337 (Spring, 2016) The Native American Graves Protection and Repatriation Act (NAGPRA or the Act), which notched its twenty-fifth anniversary in 2015, is one of the most important human rights laws in the United States. The hard-fought legislation enshrines the fundamental right of Native Americans to control their ancestral dead, funerary objects, sacred objects,... 2016
Jordan Gross Vawa 2013's Right to Appointed Counsel in Tribal Court Proceedings--a Rising Tide That Lifts All Boats or a Procedural Windfall for Non-indian Defendants? 67 Case Western Reserve Law Review 379 (Winter 2016) C1-2Contents Introduction. 380 I. Federal Constitutional Right to Counsel at Public Expense. 383 A. Sixth Amendment Right to Counsel. 383 B. Actual v. Authorized Incarceration Trigger. 386 II. Making Sense of the Right--Why Does the Constitution Require Appointed Counsel for Poor People Charged with Misdemeanors Only When They are Actually... 2016
Helo Hancock Welcome from the Chair of the Indian Law Section 59-OCT Advocate 24 (October, 2016) On behalf of the Indian Law Section, I would like to welcome our fellow Idaho State Bar members to this month's edition of The Advocate. It is hard to believe that I have just completed my third year as Chair of the Indian Law Section. It has been a tremendous honor to work with the caliber of practitioners we have in our membership. I truly admire... 2016
Asta Hill Western Australia's Remote Indigenous Communities: a Case Against Closures and a Call for New Governance 109 AJIL Unbound 209 (July, 2015-May, 2016) In the late 1970s thousands of Indigenous Australians initiated a movement back to the ancestral lands they had been removed from during the assimilationist era. Less than 50 years since their return to country, Aboriginal people living in Western Australia's (WA) remote communities are again grappling with their impending redispossession. WA... 2016
Monte Mills What Should Tribes Expect from Federal Regulations? The Bureau of Land Management's Fracking Rule and the Problems with Treating Indian and Federal Lands Identically 37 Public Land & Resources Law Review Rev. 1 (2016) I. INTRODUCTION. 2 II. FRACKING: RISKS AND REGULATIONS. 6 A. What is fracking?. 6 B. Risks of Fracking. 7 C. State versus Federal Regulation. 10 III. ENERGY DEVELOPMENT IN INDIAN COUNTRY. 14 A. Trust Relationship. 14 B. Federal Oversight of Energy Development. 16 C. Tribal Regulation. 20 IV. THE BLM'S FRACKING RULE. 21 A. Initial Proposed Rule. 22... 2016
Rebecca M. Webster What's the Status of Land on Indian Reservations? 89-JAN Wisconsin Lawyer 24 (January, 2016) Within the area of federal Indian law, there are many different ways to characterize land on Indian reservations. For example, the term Indian country is often used for jurisdictional purposes. Indian country includes all the land within the boundaries of an Indian reservation, even land owned by nontribal members. In addition, the formation of... 2016
Trevor Reed WHO OWNS OUR ANCESTORS' VOICES? TRIBAL CLAIMS TO PRE-1972 SOUND RECORDINGS 40 Columbia Journal of Law & the Arts 275 (Winter 2016) Introduction. 275 Part I: Current Federal and Tribal Laws Governing Pre-1972 Sound Recordings. 278 A. Non-Copyright Federal Statutes. 279 B. Common Law Copyright. 282 C. Aboriginal Title Enforced by Common Law Doctrines. 284 Part II: Case Study: Collectors' Rights versus Tribal Rights. 287 A. Laura Boulton: The Music Hunter. 288 i. Application of... 2016
Tabatha Abu El-Haj Wholly Native to the First Amendment: the Positive Liberty of Self-government 164 University of Pennsylvania Law Review Online 241 (2016) The Supreme Court has unequivocally and repeatedly rejected as wholly foreign to the First Amendment any suggestion that legislatures can regulate electoral speech in order to foster political equality. The Court is not oblivious to the distorting effects on the political process of large financial contributions. Rather, its reluctance to accept... 2016
Monica Haymond Who's in and Who's Out: Congressional Power over Individuals under the Indian Commerce Clause 102 Virginia Law Review 1589 (October, 2016) INDIAN law sits in uneasy coexistence with modern race law. Preferential treatment for Native Americans, like the Bureau of Indian Affairs (BIA) policy to hire tribal members for federal jobs, is far removed from Chief Justice Roberts's pithy truism--The way to stop discrimination on the basis of race is to stop discriminating on the basis of... 2016
Brooke E. Hamilton Why Indigenous Peoples' Property Rights Matter: Why the United Nations Declaration on the Rights of Indigenous Peoples May Be Used to Condemn Isis and the State of Iraq for Their Failure to Protect the Property Rights of Indigenous Peoples in the Nineveh 41 American Indian Law Review 51 (2016) Crying and pleading for him to stop, a girl so small an adult's hands could circle her waist, experienced excruciating pain as an Islamic State (ISIS) fighter repeatedly raped her. Under ISIS' extremist interpretation of Islam, the militant informed the girl, only twelve in age, that for religious reasons he was allowed to rape an unbeliever.... 2016
Steven J. Alagna Why Obergefell Should Not Impact American Indian Tribal Marriage Laws 93 Washington University Law Review 1577 (2016) Catalyzed by Massachusetts's legalization of same-sex marriage in 2003, the debate surrounding marriage equality surged to the forefront of this country's public discourse, culminating in the Supreme Court's momentous decision in Obergefell v. Hodges. Prior to Obergefell, thirty-seven states and the District of Columbia had legalized same-sex... 2016
Malcolm Lavoie Why Restrain Alienation of Indigenous Lands? 49 U.B.C. Law Review 997 (November, 2016) Alienability is today seen as a basic incident of ownership, and is mostly taken for granted in common law jurisdictions. Inalienable forms of property are seen as exceptions in need of special justification. And yet, when it comes to Indigenous land rights, the position is precisely the reverse. The pervasive norm across common law settler... 2016
Ashley Akers , Maureen Orth Winner, Best Appellate Brief in the 2016 Native American Law Student Association Moot Court Competition 40 American Indian Law Review 365 (2015-2016) I. Whether Michiconsin retains Public Law 280 jurisdiction to keep peace across the state and enforce a criminal prohibition of cannabis against the M-A Nation given that the Secretary of the Interior never accepted retrocession pursuant to federal procedures. II. Whether The High End Hotel is entitled to sovereign immunity even though it serves... 2016
Lawrence R. Baca 40 Years of U.s. Supreme Court Indian Law Cases 62-APR Federal Lawyer 18 (April, 2015) Much is often said by the media about how few Americans can name the justices of the U.S. Supreme Court. It is usually couched in terms of more people can name the seven dwarfs or Santa's eight tiny reindeer than can name the nine justices of the Supreme Court. This is a false comparison. In the 65 years of my life, the seven dwarfs have always... 2015
Lili Levi A "Faustian Pact"? Native Advertising and the Future of the Press 57 Arizona Law Review 647 (2015) As technology undermines the economic model supporting the traditional press, news organizations are succumbing to the siren call of native advertising--a new marketing technique for unobtrusively integrating paid advertising into editorial content. Brands are increasingly turning to native ads to preempt consumers' well-documented ad avoidance.... 2015
Matthew L.M. Fletcher A Restatement of Federal Indian Law? 40-MAY Human Rights 23 (May, 2015) The venerable American Law Institute, established nearly a century ago to address rising complexity and uncertainty in the common law, has begun a project to restate federal Indian law. Along with my co-reporters Wenona Singel and Kaighn Smith, I serve as reporter for the project. We take our appointments very seriously--it is a distinguished... 2015
Matthew L.M. Fletcher A Short History of Indian Law in the Supreme Court 40-MAY Human Rights Rts. 3 (May, 2015) The history of federal Indian law in the Supreme Court is dynamic, controversial, and inspiring. The history starts with the earliest decades of the Supreme Court and tracks the growth of the American Republic. The long history of Supreme Court decisions in Indian law has cemented several guiding principles. First, Congress has plenary power in the... 2015
Michelle Silverthorn, Founder and CEO, Inclusion Nation Addressing the Tech-savvy Stereotype 34 No.1 Legal Management Mgmt. 2 (January, 2015) According to Prensky, digital natives are those who spent their entire lives surrounded by and using computers, video games, digital music players, video cams, cell phones, and all the other toys and tools of the digital age. In shorthand, they are those born after 1980 and easily correlate with the millennial generation and later cohorts.... 2015
Nicholas R. VandenBos Alliance for the Wild Rockies and Native Ecosystems Council V. Krueger, 950 F. Supp. 2d 1196 (D. Mont. 2013) 36 Public Land & Resources Law Review 299 (2015) The plaintiffs in Alliance for the Wild Rockies and Native Ecosystems Council v. Krueger challenged two U.S. Forest Service fuel reduction projects in the Gallatin National Forest (Forest). The first, the Bozeman Municipal Watershed Project (Bozeman Project) authorized the construction or reopening of ten miles of forest road to facilitate... 2015
Professor Maylinn Smith And Justice for All, Someday: Indians, Alaska Natives Face Unique Obstacles 40-JUL Montana Lawyer 12 (June/July, 2015) American Indians and Alaska Natives experience many of the same barriers to legal services that other similarly situated individuals encounter. Poverty, unemployment, transportation issues, communication difficulties, limited access to attorneys, the rural nature of communities, and limits on technological resources are barriers commonly identified... 2015
Michael D. Oeser AVOIDING EXTINCTION, PRESERVING CULTURE: SUSTAINABLE, SOVEREIGNTY-CENTERED TRIBAL CITIZENSHIP REQUIREMENTS 91 North Dakota Law Review 1 (2015) Tribal populations are dwindling. These losses are primarily the result of high blood quantum requirements and high levels of inter-marriage with non-Indians. Consequently, tribes will eventually face either legal extinction--where no one can meet the tribal's citizenship criteria--or practical extinction--where few tribal citizens have any... 2015
Shannon M. Morris Baby Veronica Ruling: Implications for the Indian Child Welfare Act in Indian Child Removals and Adoptions to Non-indian Custodians 72 National Lawyers Guild Review Rev. 1 (Spring, 2015) Let us put our minds together and see what life we can make for our children. --Chief Sitting Bull In 1978, the Indian Child Welfare Act (ICWA) was enacted to prevent the biased treatment of Indian children and families by public and non-Indian private child welfare systems. The assimilation policies of the 1950s and 1960s were all designed to... 2015
Amanda E. Schreyer Beyond the Buzzwords 8 No.2 Landslide 12 (November/December, 2015) Native advertising, content marketing, paid media, earned media, sponsored posts, promoted content, advertorials--today advertising and marketing lawyers need to be able to understand myriad forms of messaging in order to advise clients proficiently, whether those clients are advertisers, agencies, publishers, or influencers. The manner in which a... 2015
Gregory Ablavsky Beyond the Indian Commerce Clause 124 Yale Law Journal 1012 (January-February, 2015) The Supreme Court has described the Indian Commerce Clause as the primary constitutional basis for federal exclusive and plenary power over Indian affairs. Recently, Justice Clarence Thomas, citing current scholarship, has argued that the Clause's original understanding does not support this authority, with radical implications for current... 2015
Christina Lewis Born Native, Raised White: the Divide Between Federal and Tribal Jurisdiction with Extra-tribal Native American Adoption 7 Georgetown Journal of Law & Modern Critical Race Perspectives 245 (Fall, 2015) In 1978, Congress passed the Indian Child Welfare Act (ICWA) in response to the alarming rate at which Native American children were being removed from their homes by both private and public agencies and placed with white families. In a 1976 study, Steven Unger found that twenty-five to thirty-five percent of Native American children were being... 2015
Doug Coulson British Imperialism, the Indian Independence Movement, and the Racial Eligibility Provisions of the Naturalization Act: United States V. Thind Revisited 7 Georgetown Journal of Law & Modern Critical Race Perspectives Persp. 1 (Spring, 2015) This article reexamines the United States Supreme Court's opinion in United States v. Thind, which held that high caste Hindus were not white persons and were therefore racially ineligible for naturalized citizenship, through a rhetorical history of the briefs, judicial opinions, National Archives and Records Administration documents, and British... 2015
Matthew L.M. Fletcher BULLSHIT AND THE TRIBAL CLIENT 2015 Michigan State Law Review 1435 (2015) C1-2Table of Contents Introduction. 1436 I. The Tribal Client. 1439 A. Tribal Leadership. 1440 B. In-House Counsel. 1442 1. Tribal Political Pressures. 1443 2. Outside Counsel. 1448 3. The Supreme Court Bar. 1450 4. Zealous Advocacy and In-House Counsel. 1453 II. Bullshit. 1456 A. The Goals of the Tribal Client. 1456 B. The Goals of Outside... 2015
Kanyinke Sena Carbon Credit Schemes and Indigenous Peoples in Kenya: a Commentary 32 Arizona Journal of International and Comparative Law 257 (Symposium, 2015) I. Introduction. 257 II. Climate Change in Kenya. 260 III. Carbon Credit Schemes in Kenya. 262 A. Clean Development Mechanism Projects. 262 B. Voluntary Carbon Credit Schemes. 263 IV. Carbon Credit Schemes and Indigenous Peoples in Kenya. 265 A. Rights to Land and Territories. 267 B. Consultation and Free, Prior and Informed Consent. 269 C.... 2015
  Chapter 17 • Native American Resources 2015 ABA Environment, Energy, and Resources Law: The Year in Review 171 (2015) Several recurring themes emerged this year. This article will sample cases rather than provide an exhaustive list because future Congressional or Supreme Court action on these issues is likely. 1. Challenges to the Indian Child Welfare Act Several lawsuits have challenged the validity of the Indian Child Welfare Act (ICWA). Perhaps the most notable... 2015
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