AuthorTitleCitationSummaryYearKey Terms
Nathaniel T. Haskins Framing Concurrent Jurisdiction Issues in the Self-determination Era: Accepting the First Circuit's Analysis but Rejecting its Application to Preserve Tribal Sovereignty 32 American Indian Law Review 441 (2007-2008) In beginning this journey, entertain with me an absurd but salient hypothetical. Assume for a moment that the State of Texas sells a portion of its land to Oklahoma. The terms of the sale stipulate that Texas and Oklahoma retain concurrent jurisdiction over the land. An obvious problem arises. How do the states determine which laws apply? And... 2008 Yes
Lane R. Neal Highway Appropriations Bill Shapes Tribal Sovereignty: a Look at Oklahoma Tribes' Ability to Set Environmental Standards in Light of Recent Federal Legislation 32 American Indian Law Review 219 (2007-2008) The relationship between Native Americans and their natural environment goes back to the beginning of human life in North America. As sovereign nations with strong cultural ties to their natural environment, it would seem rational that regulation of environmental standards within Indian Country would be left to the tribes. However, environmental... 2008 Yes
Rebecca A. Hart , M. Alexander Lowther Honoring Sovereignty: Aiding Tribal Efforts to Native American Women from Domestic Violence 96 California Law Review 185 (February, 2008) Each year more than 4 million women are the victims of domestic violence at the hands of their partners--this is an epidemic from which Native American women are not immune. The obstacles to leaving an abusive relationship are numerous: women often need medical help, may lack the financial resources to support themselves and their families, and... 2008 Yes
Brian P. Dimmer How Tribe and State Cooperative Agreements Can Save the Adam Walsh Act from Encroaching upon Tribal Sovereignty 92 Marquette Law Review 385 (Winter 2008) President George W. Bush signed the Adam Walsh Child Protection and Safety Act of 2006 (AWA) into law on July 27, 2006. Congress passed the AWA to expand the national sex offender registry, strengthen federal penalties for crimes against children, and prevent sexual predators from reaching children on the internet. To achieve these purposes, the... 2008 Yes
Charles Wilkinson Indian Nations and the Federal Government: What Will Justice Require in the Future? Claims Against the Sovereign 20th Judicial Conference of the United States Court of Federal Claims 17 Federal Circuit Bar Journal 235 (2008) The Court of Federal Claims has asked me to take a few minutes to step back, look out toward the horizon, and even dream a bit, about what the field of Indian law might be and I'm honored to oblige as best I can. I believe that Indian tribes would receive the high justice they deserve from our courts if judges were to understand two legal doctrines... 2008 Yes
Eagle H. Robinson Infringing Sovereignty: Should Federal Courts Protect Patents and Copyrights from Tribal Infringement? 32 American Indian Law Review 233 (2007-2008) Growing tribal economies raise numerous legal issues. Tribal activities now range from the operation of tribal smoke shops and gas stations to the operation of manufacturing plants and the operation of highly successful gaming operations. One important issue arises when an Indian tribe infringes a patent or copyright. Although collisions between... 2008 Yes
Robert J. Miller Inter-Tribal and International Treaties for American Indian Economic Development 12 Lewis & Clark Law Review 1103 (Winter 2008) American Indian nations and Indian people and Indigenous groups around the world are usually the poorest communities in their countries. These entities must develop and promote economic activities and jobs for their people. Economic development is an absolutely crucial social, political, and legal issue for these governments and their people.... 2008 Yes
Whitney Austin Walstad Maine v. Johnson: a Step in the Wrong Direction for the Tribal Sovereignty of the Passamaquoddy Tribe and the Penobscot Nation 32 American Indian Law Review 487 (2007-2008) In August of 2007, the First Circuit Court of Appeals issued a decision in Maine v. Johnson. Declaring that regulation of pollutants by Indians into Indian waters was not within the scope of tribes' explicit authority over internal tribal matters, the First Circuit concluded that two tribes in Maine - the Passamaquoddy Tribe and the Penobscot... 2008 Yes
Judith V. Royster Practical Sovereignty, Political Sovereignty, and the Indian Tribal Energy Development and Self-determination Act 12 Lewis & Clark Law Review 1065 (Winter 2008) This Article addresses the latest attempt by Congress to promote tribal self-determination through a statute designed to increase tribal control over energy resource development on Indian lands. The author begins with a brief history of the gradual transfer of control over tribal resources from the federal government to tribes. This shift in... 2008 Yes
Phillip M. Kannan Reinstating Treaty- Native American Tribes 16 William & Mary Bill of Rights Journal 809 (March, 2008) Mr. [President], tear down this wall! There is a wall that prevents Native American tribes and the United States from forming political partnerships under the Treaty Clause of the Constitution. It was created by a rider to the Indian Appropriation Act of 1871. The current text of the statute states, in part: [N]o Indian nation or tribe within the... 2008 Yes
Justin B. Richland, University of California Sovereign Time, Storied Moments: the Temporalities of Law, Tradition, and Ethnography in Hopi Tribal Court 31 PoLAR: Political and Legal Anthropology Review Rev. 8 (May, 2008) This article analyzes the temporalities that emerge in interactions before the tribal court of the Hopi Indian Nation. Particular attention will be paid to the interdiscur-sive strategies employed by courtroom interlocutors negotiating between adherence to Anglo-legal notions of fact and norm, and the narratives of Hopi tradition regularly raised... 2008 Yes
Terry L. Anderson , Dominic P. Parker , Property and Environment Research Center, University of California, Santa Barbara Sovereignty, Credible Commitments, and Economic Prosperity on American Indian Reservations 51 Journal of Law & Economics 641 (November, 2008) American Indian reservations are islands of poverty in a sea of wealth. Because this poverty cannot be explained solely by natural resource, physical, and human capital constraints, institutions are likely to be part of the explanation. One of the institutional variables is the sovereign power of tribes, which allows tribal governments to act... 2008 Yes
Adam F. Kinney The Tribe, the Empire, and the Nation: Enforceability of Pre-revolutionary Treaties Native American Tribes 39 Case Western Reserve Journal of International Law 897 (2007-2008) If there fall out any wars between us and them, what their fight is likely to be, we having advantages against them so many manner of ways, as by our discipline, our strange weapons and devices else, especially by ordinance great and small, it may easily be imagined; by the experience we have had in some places, the turning up of their heels... 2008 Yes
Scott A. Taylor The Unending Onslaught on Tribal Sovereignty: State Income Taxation of Non-member Indians 91 Marquette Law Review 917 (Summer 2008) I. Introduction. 917 II. The Antecedents. 920 A. The Colonial Period. 920 B. British Taxation. 923 C. Confederation and the Early Federal Period. 924 D. Worcester v. Georgia. 928 E. The Confederate Constitution. 932 F. Early State Attempts to Tax Tribes. 933 G. The Fourteenth Amendment. 936 H. New States and Enabling Legislation. 938 I. Allotment.... 2008 Yes
Martin Nie The Use of Co-management and Protected Land-use Designations to Protect Tribal Cultural Resources and Reserved Treaty Rights on Federal Lands 48 Natural Resources Journal 585 (Summer, 2008) Several Native Nations in the United States have cultural resources and reserved treaty rights on federal lands. This article examines two approaches that can be used to protect such values and rights: the use of cooperative management models and protected land-use designations made by Congress or federal land agencies. Background on both subjects... 2008 Yes
Robert O. Saunooke Tribal Justice 47 Judges' Journal 15 (Fall, 2008) I was intrigued by an article entitled Access to the Courts: Equal Justice for All written a few years ago by former ABA president Robert J. Grey Jr. The goal of the article was a noble one. President Grey set forth in great detail the obstacles and challenges to making courts more accessible and justice more obtainable for all people. President... 2008 Yes
Alex Tallchief Skibine Tribal Sovereign Interests Beyond the Reservation Borders 12 Lewis & Clark Law Review 1003 (Winter 2008) After describing how, from a global perspective, traditional concepts of state sovereignty have moved away from being uniquely tied to exclusive control of territories, this Article shows how the United States concept of tribal sovereignty is also no longer tied to territorial sovereignty. This is evident from the fact that, mostly through Supreme... 2008 Yes
Josh Stellmon Under the Guise of 'Treaty Rights:' the Nez Perce Tribe of Idaho, Steelhead, and Gillnetting 29 Public Land & Resources Law Review 63 (2008) I. Introduction. 64 II. Fishing, Anadromous Fish and the Nez Perce People. 66 A. History and Culture. 66 B. Fish and Contemporary Nez Perce Society. 70 III. Legal Issues Surrounding the Current Gillnetting Plan. 70 A. Treaty Fishing Rights and Government Regulation. 71 1. The Puyallup Decisions. 71 2. Share and Share Alike: Apportionment of... 2008 Yes
Erik S. Laakkonen Up in Smoke? Narragansett, Hicks, and the Erosion of Tribal Sovereign Immunity 11 Journal of Gender, Race and Justice 453 (Spring 2008) The Supreme Court has long recognized the doctrine of tribal sovereign immunity from suit. The doctrine was developed exclusively under federal common law, unlike state immunity, and is firmly rooted in American Indian law. Despite its benefit to tribal entities, in recent years the Supreme Court has suggested the need for Congress to abrogate, or... 2008 Yes
David Keanu Sai A Slippery Path Towards Hawaiian Indigeneity: an Analysis and Comparison Between Hawaiian State Sovereignty and Hawaiian Indigeneity and its Use and Practice in Hawai'i Today 10 Journal of Law & Social Challenges 68 (Fall 2008) On January 17, 2007, a bill was re-introduced in the U.S. Senate to grant tribal sovereignty to Native Hawaiians as the indigenous people of Hawai'i, a similar status afforded Native American tribes on the continental United States. The difference, however, is that Native Hawaiians were citizens of an internationally recognized sovereign State,... 2008  
Diane Howard Achieving a Level Playing Field in Space-related Public-private Partnerships: Can Sovereign Immunity Upset the Balance? 73 Journal of Air Law and Commerce 723 (Fall 2008) wolde you bothe eate your cake, and have your cake? John Heywood, 1546 I. INTRODUCTION. 723 II. PUBLIC-PRIVATE PARTNERSHIPS DEFINED. 724 III. GOVERNMENT IMMUNITY. 734 A. Background. 734 B. Foreign States Immunity Act. 737 C. Additional U.S. Law Providing State Immunity. 745 D. Eleventh Amendment Immunity. 748 IV. APPLYING THE TESTS TO P3s. 754 V.... 2008  
David G. Savage Advice of Consul 94-JUN ABA Journal 24 (June, 2008) In just his third term heading the u.s. Supreme Court, Chief Justice John G. Roberts Jr. has already put his stamp on international law and the interpretation of treaties. Perhaps he had no choice. Treaty disputes have been bubbling up. Some have concerned trade pacts: In Department of Transportation v. Public Citizen, 541 U.S. 752 (2004), the... 2008  
Allie Alexis Umoff An Analysis of the 1944 U.s.-mexico Water Treaty: its Past, Present, and Future 32-FALL Environs Environmental Law and Policy Journal 69 (Fall 2008) Introduction. 71 I. Background. 72 II. The Treaty. 73 A. History of the Treaty. 73 B. Water Delivery Obligations Under the Treaty. 73 1. Allocation of the Rio Grande and Its Tributaries. 74 2. Allocation of the Colorado River. 75 3. Temporary Exemptions. 75 4. Hierarchy of Uses Under the Treaty. 76 III. Implementation of and Compliance with the... 2008  
Geoffrey S. Carlson An Offer They Can't Refuse? The Security Council Tells North Korea to Re-sign the Nuclear Non-proliferation Treaty 46 Columbia Journal of Transnational Law 420 (2008) On October 9, 2006 North Korea conducted a nuclear test. Shortly after, the United Nations Security Council passed Resolution 1718 under Chapter VII of the UN Charter. The resolution demanded, inter alia, that North Korea re-sign the Nuclear Non-Proliferation Treaty, from which it had withdrawn in 2003, while imposing limited economic sanctions.... 2008  
  Argentina Will Terminate Austrian Tax Treaty 19 Journal of International Taxation Tax'n 8 (November, 2008) EY Argentine Tax Desk Update On June 26, 2008, Argentina issued the notice referred to in Article 29 of its treaty with Austria to terminate the treaty relating to taxes for any fiscal year commencing after December 31, 2008. The Austrian treaty is one of the few signed by Argentina out of 18 currently in force that give rights exclusively to the... 2008  
Eric Engle Beyond Sovereignty? The State after the Failure of Sovereignty 15 ILSA Journal of International and Comparative Law 33 (Fall, 2008) I. Sovereignty. 34 A. Definition of Sovereignty. 34 B. Analogies between Sovereignty and the Ruler to Property and Family. 35 C. Origins of the Sovereign Power. 36 1. Religious Justification: Auctoritas. 36 2. Political Reality: Potestas. 37 II. Historical Sources. 37 A. History of the State. 38 B. Transformation of Feudal Sovereignty into Liberal... 2008  
Jason Webb Yackee Bilateral Investment Treaties, Credible Commitment, and the Rule of (International) Law: Do Bits Promote Foreign Direct Investment? 42 Law and Society Review 805 (December, 2008) A long line of research, beginning with Macaulay's (1963) well-known study of Non-Contractual Relations in Business, suggests that the formal trappings of domestic law often have effects on private behavior that are, at best, indirect, subtle, and ambiguous (Macaulay 1984:155). Law and society scholars have spent somewhat less time exploring... 2008  
Stephanie Holmes Breaking the Ice: Emerging Legal Issues in Arctic Sovereignty 9 Chicago Journal of International Law 323 (Summer 2008) In August 2007, Russia garnered international attention by sending two mini-submarines to plant a Russian flag in the deep seabed near the North Pole. The gesture symbolized Russia's interest in the Arctic, though many commentators have dismissed the act as legally inconsequential. The journey is believed to have been the first submarine mission to... 2008  
  Canada 42 International Lawyer 929 (Summer 2008) Canada has taken a very active role in negotiating several new free trade agreements and bilateral investment treaties in 2007. This article will discuss the negotiations, review new developments in foreign investment law, and analyze a new Canadian Supreme Court decision that confirmed the automatic incorporation of international law into Canadian... 2008  
Steve Suppan Challenges for Food Sovereignty 32-WTR Fletcher Forum of World Affairs 111 (Winter, 2008) Food sovereignty is an agricultural, environmental, and rural development policy framework that made its first public appearance at the 1996 World Food Summit in Rome. The initial and most persistent proponent of food sovereignty is Via Campesina (or International Peasant Movement), an organization representing small farming organizations with... 2008  
Sarah Leevan Comparative Treatment of Human Trafficking in the United States & Israel: Financial Tools to Encourage Victim Rehabilitation and Prevent Trafficking 6 Cardozo Public Law, Policy and Ethics Journal 773 (Spring 2008) Human trafficking, the movement of persons by coercion or deception into exploitative labor or slavery-like practices, is an issue of growing domestic and international concern. Labor migration is on the rise and globalization encourages people from less developed nations to seek better opportunities abroad. These people are often in a position to... 2008  
Zachary Elkins , Andrew T. Guzman , Beth Simmons Competing for Capital: the Diffusion of Bilateral Investment Treaties, 1960--2000 2008 University of Illinois Law Review 265 (2008) Beginning in the early 1960s, bilateral investment treaties (BITs) have become the primary international legal mechanism for the governance of foreign direct investment. These agreements establish the terms and conditions for private investment by nationals and companies of one country in the jurisdiction of another. In this article, Professors... 2008  
Jason Webb Yackee Conceptual Difficulties in the Empirical Study of Bilateral Investment Treaties 33 Brooklyn Journal of International Law 405 (2008) Bilateral investment treaties, or BITs, have emerged as one of the most remarkable recent developments in international law. In BITs, two countries-- often a developed country and a less-developed country--extend legally binding promises to treat each other's foreign investors favorably. The first BIT, according to most observers, was signed in... 2008  
Sophie Clavier Contrasting Franco-american Perspectives on Sovereignty 14 Annual Survey of International and Comparative Law L. 1 (Spring, 2008) The findings of this paper augment Keohane's argument that sovereignty is a useful conceptual lens in the study of International Relations and that understanding divergent conceptions of sovereignty in Europe and in the United States is crucial to shedding light on the formulation of their respective policies. Indeed, the first goal of this paper... 2008  
Christi Jo Benson Crossing Borders: a Focus on Treatment of Transgender Individuals in U.s. Asylum Law and Society 30 Whittier Law Review 41 (Fall 2008) For each of the thousands of people granted asylum to the United States every year, there are even more people around the world who are persecuted, but never given the opportunity to immigrate to the United States or the privilege to live here lawfully. Among these people, both those who never reach the United States and those who are granted... 2008  
Christopher M. Bruner Culture, Sovereignty, and Hollywood: Unesco and the Future of Trade in Cultural Products 40 New York University Journal of International Law & Politics 351 (Winter 2008) I. From Hollywood to Cannes. 352 II. Culture and National Identity: Imagined and Re-Imagined. 360 A. The Elusive Concept of Culture. 361 B. Knowing Culture Backward and Forward. 364 III. The Culture Exception and Agreeing to Disagree. 366 A. General Agreement on Tariffs and Trade. 366 B. Free Trade in North America. 368 C. The European Union:... 2008  
Till Müller Customary Transnational Law: Attacking the Last Resort of State Sovereignty 15 Indiana Journal of Global Legal Studies 19 (Winter, 2008) In the Westphalian State, Customary International Law (CIL) has traditionally been informed by high-level state action among close neighbors. However, it is no longer a foregone conclusion that CIL is resistant to the influences of greater globalization and transnational government and non-governmental action. As the interaction among and between... 2008  
Seyla Benhabib Democracy, Demography, and Sovereignty 2 Law & Ethics of Human Rights Rts. 2 (January, 2008) In this article I examine recent debates concerning the emergence of cosmopolitan norms that protect individuals' rights regardless of their citizenship status, and the spread of what some have called global law without a state. I distinguish between the spread of human rights norms and the emergence of deterritorialized legal regimes, by... 2008  
Kim D. Chanbonpin Ditching "The Disposal Plan:" Revisiting Miranda in an Age of Terror 20 Saint Thomas Law Review 155 (Winter 2008) I. Introduction. 156 II. Bringing Suspected Terrorists to Justice. 160 A. The Failures of the Military Commission. 160 1. The Military Order. 160 2. Judicial Review and Attempts at Remedial Legislation. 161 B. The Ad Hoc Court Option. 166 C. Torture and the Disposal Plan . 168 III. Terror Suspects Should Be Tried in the Normal Criminal Justice... 2008  
Theodore Kill Don't Cross the Streams: past and Present Overstatement of Customary International Law in Connection with Conventional Fair and Equitable Treatment Obligations 106 Michigan Law Review 853 (March, 2008) The obligation to provide fair and equitable treatment to foreign investors and investments has existed as a concept of international economic law at least since the 1919 Covenant of the League of Nations. The fair and equitable treatment provision is a key protection contained in the vast majority of modern bilateral investment treaties. Tribunals... 2008  
The Honorable Peggy Fulton Hora , Theodore Stalcup Drug Treatment Courts in the Twenty-first Century: the Evolution of the Revolution in Problem-solving Courts 42 Georgia Law Review 717 (Spring, 2008) Almost no one minds when an inexpensive trinket breaks, wears out, or rapidly requires replacement. But when something costs hundreds of thousands of dollars, greater assurance is needed that it serves its intended purpose and will continue to do so over a lengthy period of time. The traditional criminal justice system consumes vast economic and... 2008  
Jeffrey S. Storms El Montículo ("The Mound"): the Disparate Treatment of Latin American Baseball Players in Major League Baseball 2 University of St. Thomas Journal of Law & Public Policy 81 (Spring 2008) While baseball is commonly recognized as the great American pastime, the game is undeniably becoming a global pursuit. In fact, as of the 2002 season, over one quarter of the players in Major League Baseball (MLB) were born outside of the United States. Latin American ballplayers, in particular, have long contributed to baseball's deep and rich... 2008  
Susan D. Franck Empiricism and International Law: Insights for Investment Treaty Dispute Resolution 48 Virginia Journal of International Law 767 (Summer 2008) Introduction. 768 I. Empiricism and International Law. 774 A. The Historical Context. 775 B. Moving Towards Reintegration. 777 1. The IR/IL Fusion. 778 2. ELS Scholarship. 780 C. The Nexus of ELS and IR/IL. 782 II. Sketching a Framework of Empirical Methodologies. 784 III. Applying Empirical Methodologies to International Investment Law and Dispute... 2008  
Laura Moranchek Hussain Enforcing the Treaty Rights of Aliens 117 Yale Law Journal 680 (January, 2008) ABSTRACT. Despite the Supremacy Clause's declaration that treaties are the Law of the Land, efforts to incorporate treaties that guarantee individual rights into domestic law have been stymied by a wave of political opposition. Critics argue that giving these treaties the force of domestic law would be inconsistent with constitutional values like... 2008  
Kevin Tray Fear and Loathing in the South Pole: the Need to Resolve the Antarctic Sovereignty Issue and a Framework for Doing it 22 Temple International and Comparative Law Journal 213 (Spring 2008) Great God! This is an awful place. - Captain Robert Scott, 1912 Antarctica is a continent on the brink. The constant political instability of oil-rich nations, coupled with an increasing global petroleum demand, is fueling the likelihood that the world will turn its thirsty eyes towards this great unexplored frontier in search of natural energy... 2008  
  First Amendment - California Supreme Court Holds That Free Exercise of Religion Does Not Give Fertility Doctors Right to Deny Treatment to Lesbians. - North Coast Women's Care Medical Group, Inc. v. San Diego County Superior Court, 189 P.3d 959 (Cal. 2008 122 Harvard Law Review 787 (December, 2008) Ever since reproductive technology made childbearing a viable option for those who cannot otherwise conceive, doctors have been limiting access to that technology by deciding who can receive treatment. Women over the age of forty, unmarried women, and lesbians have all been denied access. Recently, in North Coast Women's Care Medical Group, Inc. v.... 2008  
Colby Barrett Fitting a Square Peg in a Round (Drill) Hole: the Evolving Legal Treatment of Coalbed Methane-produced Water in the Intermountain West 38 Environmental Law Reporter News & Analysis 10661 (September, 2008) Editors' Summary: Groundwater resources in the intermountain West (Colorado, Montana, New Mexico, Utah, and Wyoming) continue to dwindle while populations expand. In the 1950s, states set up oil and gas conservation commissions to regulate the disposal of small amounts of highly saline water produced during conventional oil and gas extraction.... 2008  
Colby Barrett Fitting a Square Peg in a Round (Drill) Hole: the Evolving Legal Treatment of Coalbed Methane-produced Water in the Intermountain West 38 Environmental Law Reporter News & Analysis 10661 (September, 2008) Editors' Summary: Groundwater resources in the intermountain West (Colorado, Montana, New Mexico, Utah, and Wyoming) continue to dwindle while populations expand. In the 1950s, states set up oil and gas conservation commissions to regulate the disposal of small amounts of highly saline water produced during conventional oil and gas extraction.... 2008  
Alejandro Moreno, M.D., M.P.H., J.D., FACP, FCLM , Vincent Iacopino, M.D., Ph.D. Forensic Investigations of Torture and Ill-treatment in Mexico 29 Journal of Legal Medicine 443 (Ocrober-December, 2008) Torture and ill-treatment have been documented in Mexico, despite the clear prohibition of these practices under international treaties ratified by Mexico and the Mexican Constitution. Torture is categorized in all of the federal and state jurisdictions as a felony crime. In addition, the federal government and 14 states have enacted separate... 2008  
Lauren Benton From International Law to Imperial Constitutions: the Problem of Quasi-sovereignty, 1870-1900 26 Law and History Review 595 (Fall, 2008) The roots of the international legal order have often been traced to intertwining scholarly and political traditions dating back to the early seven-teenth century, in particular to early writings in international law and the rise of the nation-state in Europe. Recent scholarship has attacked this narrative from many angles. One approach has been to... 2008  
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