| Author | Title | Citation | Summary | Year | Key Terms |
| Josh Blackman |
October Term 2019 in Review: Blue June |
8/27/2020 University of Chicago Law Review Online Online 1 (August 27, 2020) |
Over the past 225 years, the Supreme Court witnessed two presidential impeachment trials and two pathogenic shutdowns. This past winter, Chief Justice John Roberts presided over both in the span of two months--and those weren't even the biggest headlines of the year! This term had it all: guns, abortion, DACA, Little Sisters, LGBT discrimination,; Search Snippet: ...at 2459 Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has... |
2020 |
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| Blake Gentry |
O'odham Niok? In Indigenous Languages, U.s. "Jurisprudence" Means Nothing |
37 Chicana/o-Latina/o Law Review 29 (2020) |
C1-2Table of Contents Introduction. 30 I. Standing of Indigenous Languages in the U.S. Immigration System. 32 II. Venues of Language Discrimination. 35 A. First Contact, Origin of Language Discrimination. 36 B. Streamline Criminal Court. 38 C. Longterm Detention. 39 D. Immigration Court. 41 E. Family and Child Detention. 42 III. Law and Policy for; Search Snippet: ...O'odham Nation sanctioned by the Department of Interior's Bureau of Indian Affairs, and that the Tohono O'odham Nation was recognized as an indigenous nation with limited sovereignty in 1917 by Executive Order, [FN1] at no time during... |
2020 |
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| Michael D. Ramsey |
Originalism and Birthright Citizenship |
109 Georgetown Law Journal 405 (December, 2020) |
The first sentence of the Fourteenth Amendment provides: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. This language raises two substantial questions of scope. First, what does it mean to be born in the United States? Does; Search Snippet: ...the time was Alaska (purchased in 1867), but the acquisition treaty acknowledged Alaskans' U.S. citizenship; Alaska's indigenous population was excluded from citizenship by the same theory that excluded tribal Native Americans in the contiguous states and territories, and in any event the non- Native population was extremely small and not expected to grow. [FN55... |
2020 |
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| Stephen J. Ware |
Paternalism or Gender-neutrality? |
52 Connecticut Law Review 537 (July, 2020) |
The strong and widely accepted reasons for using gender-neutral language presumptively apply to the gendered word paternalism and its gender-neutral counterpart, parentalism. With these reasons in mind, this Article's thesis is that legal scholars should begin with a presumption for using the gender-neutral word parentalism, while using paternalism; Search Snippet: ...1000-01 (2017) . Jessica A. Shoemaker, Complexity's Shadow: American Indian Property, Sovereignty, and the Future , 115 Mich. L. Rev. 487, 542 (2017... |
2020 |
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| Binendri Perera |
People's Movements as a Strand of Popular Constitutionalism: Driving Forces, Distinctive Features, and Dilemmas |
29 Washington International Law Journal 341 (April, 2020) |
Constitutional democracies claim themselves to be constructed upon the will of the people. As the agency gap between the rulers and the ruled widens, people are increasingly more frustrated and compelled to actively take a stand. Advances of technology and social mobilization give increasing opportunities for the people to directly; Search Snippet: ...also extremely progressive in its incorporation of international human rights treaties, enshrinement of economic, social and cultural rights, women's rights and indigenous rights. [FN55] However, the executive branch consists of a president... |
2020 |
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| Jeremy A. Siegman, Harvard University |
Playing with Antagonists: the Politics of Humor in Israeli-palestinian Market Encounters |
43 PoLAR: Political and Legal Anthropology Review 103 (May, 2020) |
This article identifies playful antagonism as a defining mode of rare Israeli-Palestinian encounters in Israeli settlement businesses. It is based on ethnographic work primarily in an Israeli settlement supermarket where the lowest-paid workers are mostly occupied Palestinians. This playful antagonism characterizes heated; Search Snippet: ...387). Anthropologists have complicated Wolfe's settler logics through attention to indigenous sovereignty (Cattelino 2008; Simpson 2014); and, in Palestine, to the everyday... |
2020 |
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| Matthew L.M. Fletcher |
Politics, Indian Law, and the Constitution |
108 California Law Review 495 (April, 2020) |
The question of whether Congress may create legal classifications based on Indian status under the Fifth Amendment's Due Process Clause is reaching a critical point. Critics claim the Constitution allows no room to create race-or ancestry-based legal classifications. The critics are wrong. When it comes to Indian affairs, the Constitution is not; Search Snippet: ...the Reconstruction Congress. Between 1866 and 1875, Congress singled out Natives for special treatment in scores of statutes and treaties In addition, the Fourteenth Amendment itself acknowledges that Indians may continue to be singled out, excluding Indians not taxed for apportionment purposes. U.S. Const. amend. XIV, §... |
2020 |
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| Zoe Cometti |
Possibilities of Limiting the Protection of Large-scale Investments in Farmland |
21 German Law Journal 1198 (September, 2020) |
Large-scale investments in farmland can generate adverse effects on food security, minority groups, and the environment. Consequently, this Article analyzes to what extent international investment law has the potential to prevent those effects, considering the current investment treaty reform towards a symmetrical; Search Snippet: ...pointed out by the Special Rapporteur on the rights of indigenous peoples, investment treaty arbitral tribunals do not apply human rights and indigenous peoples' rights as sources of applicable law. [FN156] It is... |
2020 |
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| Lillian K. Glenister |
Preserving Maunakea under International Law: a Draft Petition to the Inter-american Commission on Human Rights on Behalf of Kealoha Pisciotta and Hawai'i's Knaka Maoli Community |
56 California Western Law Review 399 (Spring, 2020) |
C1-2Table of Contents Summary of Petition. 400 Draft Petition to the Inter-American Commission on Human Rights on Behalf of Kealoha Pisciotta and Hawai'i's Knaka Maoli Community. 403 Introduction. 403 I. The Petitioners. 406 II. Factual and Procedural Background. 407 A. Significance of Maunakea to Knaka Maoli. 407 B. The TMT Project. 409 C; Search Snippet: ...Knaka Maoli have acted to express their cultural and political sovereignty in many ways, their protests over the construction of a... |
2020 |
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| Eric S. Janus |
Preventing Sexual Violence: Alternatives to Worrying about Recidivism |
103 Marquette Law Review 819 (Spring, 2020) |
I. Introduction. 819 II. How We Got Here: A Short History. 825 III. Frightening and High. 827 A. The Sex Offender as Other. 828 B. The Sex Offender as Serial Predator. 830 IV. The Myth of the Serial Predator. 832 A. The Frightening and High Myth Grossly Exaggerates Sexual Recidivism. 832 B. Sex Offenders are Heterogeneous with Respect to; Search Snippet: ...women could be raped. Sarah Deer, Decolonizing Rape Law: A Native Feminist Synthesis of Safety and Sovereignty , 24 Wicazo Sa Rev. 149, 151 (2009). Women minorities remain... |
2020 |
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| |
Procedural Means of Enforcement under 42 U.s.c. § 1983 |
49 Georgetown Law Journal Annual Review of Criminal Procedure 1211 (2020) |
Scope of § 1983. Under 42 U.S.C. § 1983, a prisoner may seek redress against state and local (but not federal ) officials when a person acting under color of state law deprives the prisoner of rights guaranteed by the Constitution or federal laws. The Court has provided at least three categories of conduct that satisfy § 1983's under color of; Search Snippet: ...577 (10th Cir. 2015) (no cognizable § 1983 claim under treaty between United States and Native American tribe); Burban v. City of Neptune Beach, Fla., 920 F.3d... |
2020 |
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| Angela C. Carmella |
Progressive Religion and Free Exercise Exemptions |
68 University of Kansas Law Review 535 (March, 2020) |
Progressive religious causes have grown increasingly visible during the Trump presidency. Dr. Scott Warren, volunteering with a Unitarian ministry, is arrested for giving food and water to border crossers in Arizona and charged with felony harboring. Catholic nuns in Pennsylvania try to stop the installation of a natural gas pipeline across their; Search Snippet: ...of Native Americans often do not. The religious practices of Native American tribes are protected, if at all, by a complex web of treaty, constitutional, and statutory laws. [FN352] Though it is difficult to... |
2020 |
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| Tyler Yeargain |
Prosecutorial Disassociation |
47 American Journal of Criminal Law 85 (Spring, 2020) |
Introduction. 86 I. The History and Development of Prosecutors' Associations. 87 A. Institutional Histories. 87 B. Statutory Power. 92 II. Prosecutors' Associations as Interest Groups. 96 A. Lobbying. 97 B. Electioneering. 104 C. Participation in Litigation. 110 III. Progressive Prosecutors and Prosecutors' Associations. 114 A. The Rise of the; Search Snippet: ...Murphy , a recently-decided case that will greatly affect the sovereignty of Native American tribes in Oklahoma and the viability of state-level prosecutions in... |
2020 |
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| Christopher Barbera |
Protecting Native Human Rights During Natural Disasters Through Free, Prior, and Informed Consent: a Case Study on Arguing Fpic as a Tool for Human Rights |
48 Denver Journal of International Law and Policy 107 (Summer, 2020) |
It is an established principle of disaster preparedness that the involvement of local communities in disaster risk reduction and emergency planning processes greatly increases that community's resilience in the face of natural disasters. Communities often have unique hazards, strengths, internal dynamics and politics, response capabilities, and; Search Snippet: ...Part I discusses the FEMA TCP, its legislative history, and Native self-determination and sovereignty in the context of Federal Indian Law. The section then examines how the concept of FPIC... |
2020 |
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| Ryan V. Petty |
Protections for Traditional Knowledge under State Common Law and Constitutional Law |
26 Boston University Journal of Science and Technology Law 120 (Winter, 2020) |
Introduction. 121 I. Preemption Issues with Intellectual Property. 124 A. Patents. 125 B. Copyright. 127 1. Section 301(a) (preemption). 127 2. Section 301(b)-(c) (non-preemption). 128 3. Moral rights. 129 C. Trademark. 131 D. Trade Secret. 133 E. How to Survive Federal IP Law Preemption. 136 II. Preemption Issues with Native American Tribes. 137; Search Snippet: ...Commerce Clause. [FN156] This case capped years of dwindling tribal sovereignty wins in the Supreme Court by holding that the Indian Commerce Clause of the Constitution imposed no judicially enforceable restraints... |
2020 |
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| Adam J. MacLeod |
Public Rights after Oil States Energy |
95 Notre Dame Law Review 1281 (January, 2020) |
The concept of public rights plays an important role in the jurisprudence of the Supreme Court of the United States. But as the decision in Oil States last Term revealed, the Court has often used the term to refer to three different concepts with different jurisprudential implications. Using insights drawn from historical and analytical; Search Snippet: ...FN13] federal regulation of employment contracts and other commerce, [FN14] native tribal sovereignty, [FN15] and other areas of law that implicate both private... |
2020 |
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| Robert L. Tsai |
Racial Purges |
118 Michigan Law Review 1127 (April, 2020) |
The Chinese Must Go: Violence, Exclusion, and the Making of the Alien in America. By Beth Lew-Williams. Cambridge and London: Harvard University Press. 2018. Pp. 244. $24.95. On the rainy morning of November 3, 1885, some 500 armed white men visited the home and business of every single Chinese person living in Tacoma, Washington. As the skies; Search Snippet: ...keep out and hunt for unauthorized Chinese migrants, or when indigenous tribes were systematically deprived of sovereignty and their members forcibly relocated to reservations. [FN92] Legalized expulsions... |
2020 |
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| Clifford B. Parkinson , The Honorable Dee V. Benson |
Raconteur, Bon Vivant, Senior Judge: a Tribute to Monroe Mckay |
33-AUG Utah Bar Journal 14 (July/August, 2020) |
In an interview some thirty years ago, Judge Monroe G. McKay of the Tenth Circuit Court of Appeals said, I hope to serve my full term as a judge - they are appointed for life, you know. On March 28, 2020, at the age of 91, Judge McKay realized that hope, passing away peacefully while still active as a senior judge for the circuit. Just two weeks; Search Snippet: ...Considering the case en banc , the majority held that the Tribe did have the authority to tax and explained that chief among the powers of sovereignty recognized as pertaining to an Indian tribe is the power of taxation. Id. at 544 While the... |
2020 |
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| Scott W. Stern |
Rebuilding Trust: Climate Change, Indian Communities, and a Right to Resettlement |
47 Ecology Law Quarterly 179 (2020) |
According to most estimates, more than one hundred million people will be permanently displaced by climate change by 2050. Among the people most at risk of displacement are American Indians. If the government does nothing, or simply does not do enough, hundreds of Indian communities across the United States will be destroyed, the members of these; Search Snippet: ...it. It guarantees Indian communities relocation as communities Emerging from treaty obligations and the foundational Indian law cases of the 1830s, the federal trust duty today... |
2020 |
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| Mariam Hashmi |
Recent Challenges to the Indian Child Welfare Act Suggest it Is Time for the United States Supreme Court to Act: Indian Survival Depends on it |
21 Rutgers Race & the Law Review 149 (2020) |
Congress enacted the Indian Child Welfare Act of 1978 (ICWA) in response to the removal of Indian children from their homes, and to protect the best interests of Indian tribes and families. The United States Supreme Court has been reluctant to hear challenges to the ICWA but with the increase in challenges in the lower courts, and a major setback; Search Snippet: ...of this Note begins with a historical context of tribal sovereignty which designates tribes as separate and independent political communities that have a right... |
2020 |
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| Jonodev Chaudhuri |
Reflection on Mcgirt V. Oklahoma |
134 Harvard Law Review Forum 82 (November 20, 2020) |
My Mvskoke family lives in a world of stories. My mother immersed me in these stories. Until her untimely death, Mom did all that she could to keep my brother, my cousin, and me connected to our traditions and instill in us a sense of what it means to be Muscogee. The fact that we lived out of state made no difference. Some of her efforts were; Search Snippet: ...Gorsuch wrote: Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has... |
2020 |
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| Kermit V. Lipez |
Reflections on the Church/state Puzzle |
72 Maine Law Review 325 (2020) |
I. INTRODUCTION II. MASTERPIECE CAKESHOP: THE FIGHT FOR RELIGIOUS EXCEPTIONS TO PUBLIC ACCOMMODATIONS LAWS A. Precedent: Employment Division v. Smith B. Masterpiece Cakeshop's Sidestep C. The Portent of Masterpiece Cakeshop III. TRINITY LUTHERAN: THE ASCENDENCY OF THE FREE EXERCISE CLAUSE OVER THE ESTABLISHMENT CLAUSE A. Accommodation for Religious; Search Snippet: ...the President to proclaim days of prayer and thanksgiving, the Indian treaties under which Congress paid the salaries of priests and clergy... |
2020 |
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| John T. Holden |
Regulating Sports Wagering |
105 Iowa Law Review 575 (January, 2020) |
The Supreme Court decision in Murphy v. National Collegiate Athletic Association has opened a door that has remained closed for more than a quarter century, allowing states to begin legalizing sports gaming. State lawmakers' excitement in seeking a new way to generate revenue is palpable through the more than 25 different bills that have; Search Snippet: ...Supreme Court was tasked with addressing the scope of tribal sovereignty in the realm of gaming in California v. Cabazon Band of Mission Indians [FN239] The Cabazon case centered on two California tribes with... |
2020 |
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| Margaret Schaff, J.D. |
Regulation of Electric Utilities on Indian Reservations: Tribal Governments' Oversight of Renewable Energy Development and Utility Providers and Authority to Create Tribal Utilities |
41 Energy Law Journal 261 (2020) |
Synopsis: Indian tribes are sovereign governments who have obligations to their members. As with any government, a basic need of a tribal government is to assure the public has cost effective and reliable utility services, safe and appropriate infrastructure on their lands, and fair access to voting for representation on elected utility boards and; Search Snippet: ...Indian tribe inhabiting it, and not with the states. [FN46] Tribes have inherent sovereign authority in Indian Country to regulate entities doing business on tribal lands as an essential attribute of Indian sovereignty; it is a necessary instrument of self-government and territorial... |
2020 |
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| Dipika Jain, Payal K. Shah |
Reimagining Reproductive Rights Jurisprudence in India: Reflections on the Recent Decisions on Privacy and Gender Equality from the Supreme Court of India |
39 Columbia Journal of Gender and Law L. 1 (Spring, 2020) |
In July 2018, twenty-year-old Sarita approached the Supreme Court of India seeking permission to terminate her twenty-five-week pregnancy. Sarita was a domestic violence survivor and suffered from other health complications due to epilepsy. She had learned of her pregnancy at seventeen weeks and her petition stated that she had become pregnant as a; Search Snippet: ...states take measures to eliminate discrimination on multiple axes. [FN226] Treaty monitoring bodies have established that states should take extra efforts... |
2020 |
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| Haochen Sun |
Reinvigorating the Human Right to Technology |
41 Michigan Journal of International Law 279 (2020) |
The right to technology is a forgotten human right. Dating back to 1948, the right was established by the Universal Declaration of Human Rights (UDHR) in response to the massive destruction wrought by technologically advanced weapons in the Second World War. The UDHR states that [e]veryone has the right . to share in scientific advancement and; Search Snippet: ...Id . United Nations Declaration on the Rights of Indigenous Peoples, Discussion Guide: Acknowledging Truths, Winter 2018 PPH Reading( [M]ost human rights treaties reflect an individualistic concept of rights and rights-holders. But... |
2020 |
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| Valorie E. Douglas |
Reparations 4.0: Trading in Older Models for a New Vehicle |
62 Arizona Law Review 839 (Fall, 2020) |
Reparations reappeared in the news even before the murders of George Floyd, Breonna Taylor, Ahmaud Arbery, and others made headlines as modern-day lynchings. As data continue to show the perpetuation of social and economic harm and hardship that Black Americans suffer for being Black Americans, notions of fairness and justice suggest redress for; Search Snippet: ...reparations occurred in the United States when Congress created the Indian Claims Commission in 1946, which had jurisdiction to hear and resolve claims resulting from unfair takings and other treaty breaches between the United States and Native nations and tribes. [FN47] A third example was the Civil Liberties Act of... |
2020 |
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| Robert Alan Hershey |
Repatriation of Sacred Native American Cultural Belongings from Historical Racism |
56-AUG Arizona Attorney 40 (July/August, 2020) |
The Hopi Tribe and other Puebloan societies continue to fight French auction-houses that promote sales of sacred belongings that these Native Nations assert are critical to their customary heritages. Tribes elsewhere have been alertedDD to other potential national and international auctions that could foster disappearances of their own cultural; Search Snippet: ...applied only to items found on federal lands. The American Indian Religious Freedoms Act (AIRFA) has no teeth; the United Nations Educational, Scientific, and Cultural Organization (UNESCO) Treaty does not prevent the export of sacred Native artifacts; the Native American Graves Protection and Repatriation Act (NAGPRA) is a mechanism... |
2020 |
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| Ariane Frosh |
Reproducing Equality: How Covid-19 Can Strengthen Abortion Rights |
68 UCLA Law Review Discourse 80 (2020) |
States hostile to reproductive freedom have weaponized the COVID-19 pandemic to ban abortion in the name of public safety. Relying on heightened power the state typically exercises during an emergency, it can capitalize on public panic to achieve its policy goals. By laying bare the racial inequities of our healthcare systems and the opportunistic; Search Snippet: ...of civil liberties during a national security crisis); Laurence H. Tribe & Patrick O. Gudridge, The Anti-Emergency Constitution , 113 Yale L.J... |
2020 |
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| Daniel Farber |
Requiem for a Heavyweight: the Decline and Fall of Lucas V. South Carolina Coastal Council |
71 Florida Law Review Forum 212 (2020) |
Property rights advocates hailed Lucas v. South Carolina Coastal Council. They hoped Justice Antonin Scalia's opinion for the Supreme Court would revolutionize interpretation of the Constitution's takings clause and finally fulfill its potential as a vehicle for deregulation. On its face, the ruling seemed to dramatically expand the scope of; Search Snippet: ...familiar background principles, including customary rights of beach access; [FN24] native Hawaiian food gathering rights (a decision invoking the Aloha spirit... |
2020 |
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| Laura F. Edwards |
Response to Rebecca Scott's "Discerning a Dignitary Offense" |
38 Law and History Review 571 (August, 2020) |
Discerning a Dignitary Offense uncovers the efforts of activists in New Orleans to write an expansive vision of rights into the Louisiana state constitution, one that allowed access to public space, including all places of business and public resort, to all persons, without distinction or discrimination on account of race or color. This; Search Snippet: ...the same place. That conclusion comports with recent work in Indian history, which emphasizes the persistence of native sovereignty within the geographic boundaries of European colonies in North America... |
2020 |
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| Ariela Rutbeck-Goldman, Citlalli Ochoa, Jamila Benkato |
Revolutionary Dreamers: a Public Interest Call to Action at Uc Irvine School of Law's Decennial |
10 UC Irvine Law Review 319 (January, 2020) |
As the University of California, Irvine School of Law (UCI Law or the Law School) reaches its tenth anniversary, the three of us, all 2016 UCI Law graduates, decided to commemorate the occasion by memorializing, in a critical epistolary, reflections on what the Law School has achieved and how it has developed since its founding. We are most; Search Snippet: ...un-special-rapporteur. See Int'l Indian Treaty Council, Indigenous People's Coordinated Submission U.N. Human Rights Comm. (Jan. 19, 2019... |
2020 |
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| M P Ram Mohan , Els Reynaers |
Right of Recourse Claims Based on Latent Defects in the Nuclear Energy Sector in India: Brace Yourself for Fact-intensive Disputes |
15 University of Pennsylvania Asian Law Review 284 (2020) |
This paper analyses how a case were to unfold if an operator of a nuclear installation were to exercise its right of recourse against a supplier in the event of supply of equipment or material with latent defects, as envisaged under the unique Section 17(b) of the Civil Liability for Nuclear Damage Act, 2010 (CLND Act), adopted by the Indian; Search Snippet: ...of recourse of the operator against the supplier to the Indian context and not merely to accept the standard language used in treaties. While it was noted that expanding the right of recourse... |
2020 |
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| Robert O. Saunooke |
Running for Missing and Murdered Native Women |
59 No. 2 Judges' Journal 22 (Spring, 2020) |
Currently there are over 4,000 murdered and missing indigenous women in the United States and Canada that no one is looking for or trying to find. Two indigenous women, Rosalie Fish and Jordan Marie Daniel, are running--physically running--for their people to draw attention to a tragedy that has, for the most part, been overlooked and ignored; Search Snippet: ...legislation and amendments to the House bill that would leave Native women and children less protected and further limit or infringe on Tribal sovereignty. The Senate bill requires that trials held within Indian Country... |
2020 |
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| Marc L. Roark |
Scaling Commercial Law in Indian Country |
8 Texas A&M Law Review 89 (Fall, 2020) |
How do you drive economic enterprise in a financial desert? Indian tribes, academics, economists, and policy makers have considered the means and methods for energizing economic growth for forty years. Efforts such as the creation and promotion of the Model Tribal Secured Transactions Act (MT-STA) promise much toward creating conditions that; Search Snippet: ...in concert with regional economic actors (including other states and tribes); or they may appear rhetorically too far, straining the tribe's view of self-sufficiency, sovereignty, and governance. When efforts to stimulate economic growth appear too... |
2020 |
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| G. William “Bill” Rice , Robert N. Clinton |
Section 5, Indian Trust Land Acquisitions, and Secretarial Authority |
52 Arizona State Law Journal 564 (Summer, 2020) |
At least since the Termination Era of the 1950s, the federal Bureau of Indian Affairs (BIA) has drawn a distinction for purposes of taking tribal land into federal trust status between so-called mandatory acquisitions and claimed discretionary takings. Some statutes, usually tribally specific statutes contained in settlement legislation, such as; Search Snippet: ...28-29, 2011, the ILP sponsored a program on the Indian land trust entitled Treaty to Trust to Carcieri [FN3] Bill spoke at this program... |
2020 |
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| Karen C. Sokol |
Seeking (Some) Climate Justice in State Tort Law |
95 Washington Law Review 1383 (October, 2020) |
Over the last decade, an increasing number of path-breaking cases have been filed throughout the world, seeking to hold fossil fuel industry companies and governments accountable for their actions and inactions that have contributed to the climate crisis. This Article focuses on an important subset of those cases--namely, the recent surge; Search Snippet: ...U.S. government, including [r]ecogniz[ing] the self-determination and inherent sovereignty of all of the Tribes, establishing a relocation institutional framework that is based in human... |
2020 |
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| Elizabeth Hope Fink |
Sense and Census Building: Capturing Tribal Realities in the U.s. Census |
62 Washington University Journal of Law & Policy 201 (2020) |
In the politically charged space between America's 2018 midterm elections and the 2020 general elections, the upcoming decennial Census looms. A seemingly unassuming bureaucratic process, it has enormous implications for the country's social, economic, and political realities for years to come. Citizens of American Indian and Alaska Native (AI/AN); Search Snippet: ...of social justice. Part II analyzes the demographic realities of Indian Country not captured by current Census procedures and the implications... |
2020 |
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| Jenny B. Davis |
Serving Two Tribes |
106-MAR ABA Journal 13 (February/March, 2020) |
How does a Jewish kid from Philly become a tribal court judge in Alaska? Just ask Judge David Avraham Voluck. Born and raised in Philadelphia, Voluck has been practicing federal Indian and tribal law from his home base in Sitka, Alaska, since 1996, save for a two-year sabbatical he took to attend the Rabbinical College of America. He presides in; Search Snippet: ...type of court authorized under U.S. law? It's called inherent sovereignty, and it comes from the tribes' own organic governmental authority. You can't violate the U.S. Constitution... |
2020 |
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| Kadie Martin |
So Much to Comment On, So Little Time: Notice-and-comment Requirements in Agency Informal Rulemaking under the Administrative Procedure Act |
61 Boston College Law Review E-Supplement II.-132 (April 2, 2020) |
On February 1, 2019, the U.S. Court of Appeals for the District of Columbia Circuit decided National Lifeline Ass'n v. FCC. In National Lifeline Ass'n, the D.C. Circuit Court held that, by adopting changes to a tribal telecommunications subsidy that contradicted prior policy rationale after only a two-week comment period, the agency both:; Search Snippet: ...of Policy on Establishing a Gov't-to-Gov't Relationship with Indian Tribes, 16 FCC Rcd. 4078, 4081 (2000) (noting the FCC affirmed principles of tribal sovereignty by committing to consult tribal governments before enacting policies or rules that will impact their tribes). The FCC convened two meetings with Indian tribal leaders where... |
2020 |
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| Carla F. Fredericks, Mark Meaney, Nicholas Pelosi, Kate R. Finn |
Social Cost and Material Loss: the Dakota Access Pipeline |
22 NYU Journal of Legislation and Public Policy 563 (2019-2020) |
The social conflict surrounding the Dakota Access Pipeline showcased for a generation the consequences of failing to account for the social risks of development on and near Indigenous lands, including a failure to respect human rights. The failure stemmed, in part, from a lack of adequate due diligence at the outset of the project. While the bare; Search Snippet: ...not cross any existing reservation boundaries, it does cross many tribes' ancestral lands, as well as land that was reserved to the Sioux Nation in treaties but subsequently taken by force. [FN14] On September 30, 2014... |
2020 |
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| Kayla Scott |
Steel Standing: What's next for Section 232? |
30 Duke Journal of Comparative & International Law 379 (Spring, 2020) |
This note considers possible legal challenges to the original Section 232 steel order and recommends different actions for alleviating the problem of broad executive power delegated by Congress in Section 232. Parts I and II provide an introduction and background to Section 232. Part III analyzes the constitutionality of Section 232 under both the; Search Snippet: ...statutes unless its retroactivity was made clear by Congress. [FN314] Sovereignty-inspired nondelegation canons, which are grounded in widespread understandings about sovereignty, include application of a presumption against extraterritoriality for agency interpretations, unfavorable treatment to Native Americans, and waiving sovereign immunity. [FN315] Nondelegation canons inspired by... |
2020 |
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| Adam Crepelle |
Taxes, Theft, and Indian Tribes: Seeking an Equitable Solution to State Taxation of Indian Country Commerce |
122 West Virginia Law Review 999 (Spring, 2020) |
I. Introduction. 999 II. Tribal Sovereignty and Taxes. 1001 III. Quil Ceda Village--A New Level of Injustice. 1009 A. History of QCV. 1009 B. The Tax Showdown at QCV. 1011 IV. Problem with State Taxation of Indian Country. 1014 V. Solutions. 1021 A. State Power Stops at the Reservation's Edge. 1021 B. Tax 'Em Back. 1028 VI. Conclusion. 1032; Search Snippet: ...FN1] A long and sordid history of colonization resulted in tribes relinquishing much of their land, but only some of their aboriginal sovereignty. Indeed, the settled principle is that tribes possess all inherent... |
2020 |
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| William Thomas Worster |
Territorial Status Triggering a Functional Approach to Statehood |
8 Penn State Journal of Law & International Affairs 118 (2020) |
C1-3Table of Contents L1-2119120120128128139143146164168179 I. Introduction. 119 II. Functional Statehood Based on Status. 120 A. Functional personality. 120 B. Functional statehood based on status. 128 1. Colonial Empires/Mandates/Protected States. 128 2. Occupied and Annexed States. 139 3. Internationalized Territories. 143 4. Entities in; Search Snippet: ...Anna Meijknecht, Towards International Personality: The Position of Minorities and Indigenous Peoples in International Law 25, 55 (2001); Tom Bennion, Treaty-Making in the Pacific in the Nineteenth Century and the Treaty of Waitangi , 35 Vict. Univ. Wellington L. Rev. 165, 180 (2004); Antony Anghie, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law , 40 |
2020 |
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| Matthew L.M. Fletcher |
Textualism's Gaze |
25 Michigan Journal of Race and Law 111 (Winter, 2020) |
INTRODUCTION. 111 I. Textualism. 116 II. A Short History of Indian Law Textualism in the Supreme Court. 119 A. Engagement with the Text: Reservation Boundaries Cases. 119 B. Declining to Engage with the Text: Tribal Powers Cases. 123 C. Unresolved Area: Federal Statutes of General Applicability. 126 III. Indian Law and Supreme Court's Process. 128; Search Snippet: ...country, then the state would not possess jurisdiction. [FN4] A treaty between the tribe and the United States established the reservation. Under long-settled... |
2020 |
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| Katrin Kuhlmann, Akinyi Lisa Agutu |
The African Continental Free Trade Area: Toward a New Legal Model for Trade and Development |
51 Georgetown Journal of International Law 753 (Summer, 2020) |
International trade law is at a turning point, and the rules as we know them are being broken, rewritten, and reshaped at all levels. At the same time that institutions like the World Trade Organization (WTO) face significant change and a global pandemic challenges the rules of the market, Africa's new mega-regional trade agreement, the African; Search Snippet: ...international trade space. In the area of genetic resources and indigenous rights, related treaties (namely the Convention on Biological Diversity, [FN152] Nagoya Protocol on... |
2020 |
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| Michael C. Blumm , Cari Baermann |
The Belloni Decision and its Legacy: United States V. Oregon and its Far-reaching Effects after a Half-century |
50 Environmental Law 347 (Spring, 2020) |
Fifty years ago, Judge Robert Belloni handed down a historic treaty fishing rights case in Sohappy v. Smith, later consolidated into United States v. Oregon, which remains among the longest running federal district court cases in history. Judge Belloni ruled that the state violated Columbia River tribes' treaty rights by failing to ensure a fair; Search Snippet: ...history. Judge Belloni ruled that the state violated Columbia River tribes' treaty rights by failing to ensure a fair share to tribal... |
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| Robert O. Saunooke |
The Canary in the Coalmine--the Tragic History of the U.s. Government's Policies Toward Native Peoples |
59 No. 2 Judges' Journal J. 1 (Spring, 2020) |
In 1939, Felix Cohen became chief of the Indian Law Survey, an effort by the federal government to compile the federal laws and treaties regarding the American Indians. The resulting book, published in 1941 as The Handbook of Federal Indian Law, became much more than a simple survey. The handbook was the first to show how hundreds of years of; Search Snippet: ...O. Saunooke I n 1939, Felix Cohen became chief of the Indian Law Survey, an effort by the federal government to compile the federal laws and treaties regarding the American Indians. The resulting book, published in 1941 as The Handbook of... |
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| Xueliang Ji |
The Changing Paradigm of International Tax Dispute Settlement: What Are the Promises and Challenges of Mandatory Arbitration for China? |
21 Oregon Review of International Law 117 (2020) |
118 Introduction. 118 I. Methods in Resolving Tax-Related Disputes. 122 A. Local Remedies. 123 B. Arbitration in Bilateral Investment Treaties (BITs). 123 C. Dispute Resolution Methods in Bilateral Tax Treaties. 132 II. Mandatory Arbitration Will Not Decrease National Sovereignty. 135 III. Why Taxpayers Tend to Choose Mandatory; Search Snippet: ...tax measures from the BIT. [FN80] For instance, the 2015 Indian Model BIT-EU excludes taxation from the scope of the treaty. [FN81] Another example is the agreement between the governments of... |
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| Justin Hughes |
The Charming Betsy Canon, American Legal Doctrine, and the Global Rule of Law |
53 Vanderbilt Journal of Transnational Law 1147 (October, 2020) |
In the 1803 The Schooner Charming Betsy case, Chief Justice Marshall announced a canon of interpretation that an act of Congress ought never to be construed to violate the laws of nations if any other possible construction remains. The Charming Betsy canon has become as venerable as its name is felicitous: as recently as 1988 the Supreme Court; Search Snippet: ...443 U.S. 658, 662 (1979) (interpreting the character of [a] treaty right to take fish in a treaty between Indian tribes and the United States); Reed v. Wiser, 555 F.2d... |
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