AuthorTitleCitationSummaryYearKey Terms
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  
Michael Doran Redefining Tribal Sovereignty for the Era of Fundamental Rights 95 Indiana Law Journal 87 (Winter, 2020) This Article explains a longstanding problem in federal Indian law. For two centuries, the U.S. Supreme Court has repeatedly acknowledged the retained, inherent sovereignty of American Indian tribes. But more recently, the Court has developed the implicit-divestiture theory to deny tribal governments criminal and civil jurisdiction over nonmembers,; Search Snippet: ...the U.S. Supreme Court has repeatedly acknowledged the retained, inherent sovereignty of American Indian tribes. But more recently, the Court has developed the implicit-divestiture... 2020 Yes
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  
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  
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  
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  
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  
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  
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  
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  
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  
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  
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  
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  
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  
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  
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  
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  
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  
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  
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  
Michael Bevilacqua Silent Intent? Analyzing the Congressional Intent Required to Abrogate Tribal Sovereign Immunity 61 Boston College Law Review E-Supplement II.-156 (April 6, 2020) On February 26, 2019, the United States Court of Appeals for the Sixth Circuit in Buchwald Capital Advisors, LLC v. Sault Ste. Marie Tribe of Chippewa Indians (In re Greektown Holdings, LLC III) held that Congress did not intend to abrogate tribal sovereign immunity through the enactment of the Bankruptcy Code, Title 11 of the U.S. Code; Search Snippet: ...Worcester v. Georgia, 31 U.S. 515, 559 (1932) ) (explaining that Indian tribes retain power over internal and social relations despite no longer retaining full sovereignty). Id. at 58 . The first Supreme Court case to... 2020 Yes
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  
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  
Brent D. Chicken, Amanda J. Dick Sovereign Lands 6 One J: Oil and Gas, Natural Resources, and Energy Journal 325 (October, 2020) C1-2Table of Contents I. Introduction. 325 II. Federal Regulatory Developments. 326 A. Amendments. 326 B. New Rules. 327 III. Judicial Developments. 327 A. Process and Procedure Under the APA. 327 B. Pipelines on Tribal Lands. 332; Search Snippet: ...issued for the cross-border Keystone XL Pipeline. The RS Tribe argued that Defendants violated various treaties, the Foreign Commerce Clause of the United States Constitution, and... 2020 Yes
Samuel Lazerwitz Sovereignty-affirming Subdelegations: Recognizing the Executive's Ability to Delegate Authority and Affirm Inherent Tribal Powers 72 Stanford Law Review 1041 (April, 2020) Bears Ears National Monument, as proclaimed by President Obama in 2016, realized a bold vision of cooperation between the executive branch and Native nations by elevating a coalition of Native nations as co-managers of a national monument. This proposed system of collaborative management relied on a broad interpretation of the executive; Search Snippet: ...of the executive branch's efforts to share its power with Native nations by synthesizing the Supreme Court's recognition of Congress's ability to affirm tribal sovereignty, the subdelegation doctrine as articulated by lower federal courts, and... 2020 Yes
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  
Pippa Browde Tax Burdens and Tribal Sovereignty: the Prohibition on Lavish and Extravagant Benefits under the Tribal General Welfare Exclusion 20 Nevada Law Journal 651 (Spring, 2020) This article examines a portion of a relatively new federal tax statute, the Tribal General Welfare Exclusion (TGWE), that allows qualified individuals an exclusion from gross income for payments received from American Indian/Alaska Native tribes for any Indian general welfare benefit. Indian general welfare benefits are payments made to tribal; Search Snippet: ...Tribal Cultural and Religious Traditions is Inconsistent with Current Federal Indian Policies Intended to Promote Tribal Sovereignty and Self-Determination 688 1. Interpreting the lavish and Extravagant... 2020 Yes
Nicolas M. Traut Tax Treaty Overrides and Friendliness Towards International Law: a Comparative Approach to Put the Later-in-time-rule to the Test 48 Capital University Law Review 403 (Fall, 2020) Tax treaties are the most important instrument to align cross-border taxation and to prevent international double taxation. International tax treaties limit the taxing rights of contracting states and allocate tax revenue between the countries. They foster international trade by reducing taxation at the source and by avoiding discrimination; and; Search Snippet: ...on the part of Congress has been clearly expressed. Menominee Tribe of Indians v. United States, 391 U.S. 404, 413 (1968) (Stewart, J... 2020 Yes
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  
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  
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  
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  
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... 2020  
Charles Wilkinson The Belloni Decision: a Foundation for the Northwest Fisheries Cases, the National Tribal Sovereignty Movement, and an Understanding of the Rule of Law 50 Environmental Law 331 (Spring, 2020) Judge Belloni's decision in United States v. Oregon, handed down a half-century ago, has been given short shrift by lawyers, historians, and other commentators on the modern revival of Indian treaty fishing rights in the Pacific Northwest. The overwhelming amount of attention has been given to Judge Boldt's subsequent decision in United States v; Search Snippet: ...lawyers, historians, and other commentators on the modern revival of Indian treaty fishing rights in the Pacific Northwest. The overwhelming amount of... 2020 Yes
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... 2020  
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... 2020  
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... 2020  
James Muldoon The Cherokee Nation, John Marshall, and the Stadial Theory of Development 53 UIC John Marshall Law Review Rev. 1 (Summer, 2020) I. INTRODUCTION. 1 II. STADIAL THEORY. 3 III. JOHNSON V. M'INTOSH. 6 IV. CHEROKEE NATION V. GEORGIA. 13 V. WORCESTER V. GEORGIA. 15 VI. THE CIVILIZED AND THE UNCIVILIZED. 23 VII. CHANCELLOR KENT. 24 VIII. JOSEPH STORY. 30 IX. CONCLUSION. 32; Search Snippet: ...America, the land was held, occupied, and possessed, in full sovereignty by various independent tribes or nations of Indians, who were the sovereigns of their respective portions of the... 2020  
Angela P. Harris , Aysha Pamukcu The Civil Rights of Health: a New Approach to Challenging Structural Inequality 67 UCLA Law Review 758 (October, 2020) An emerging literature on the social determinants of health reveals that subordination is a major driver of public health disparities. This body of research makes possible a powerful new alliance between public health and civil rights advocates: an initiative to promote the civil rights of health. Understanding health as a matter of justice, and; Search Snippet: ...and Patient Privacy: Tribal Policies as Added Means for Addressing Indian Health Disparities , 31 Am. Indian L. Rev. 1 (2006) (outlining the role of tribal policies... 2020  
Matthew Stanford The Constitutional Challenges Awaiting Police Reform--and How Congress Can Try to Address Them Preemptively 11 California Law Review Online 296 (July, 2020) The horrifying death of George Floyd under the knee of a Minneapolis police officer has thrust police reform back into the national discussion. As it should. The deaths of Floyd and countless other unarmed Black men and women in police custody make clear that much remains to be done before the United States rights its course in a violent history; Search Snippet: . 2020  
Dylan R. Hedden-Nicely The Contemporary Methodology for Quantifying Reserved Instream Flow Water Rights to Support Aquatic Habitat 50 Environmental Law 257 (Winter, 2020) Since time immemorial, indigenous people have relied on the streams of their territory for food, fiber, transportation, recreation, cultural, and spiritual needs. Accordingly, tribal people--particularly those in the region now called the Northwestern United States--placed singular emphasis on preserving their traditional subsistence culture when; Search Snippet: ...States during the reservation era. Although rarely expressed in these treaties, the tribes are nonetheless entitled to water rights sufficient to fulfill these traditional subsistence treaty rights. Of the suite of water rights to maintain traditional... 2020  
Jonathan Liljeblad The Convention for the Safeguarding of the Intangible Cultural Heritage (Csich) and the Control of Indigenous Culture: a Critical Comment on Power and Indigenous Rights 26 William and Mary Journal of Race, Gender, and Social Justice 281 (Winter, 2020) The Preamble of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (CSICH) recognizes the connection between indigenous peoples and intangible cultural heritage. The convention indicates that part of its mission is to protect the intangible cultural heritage of indigenous peoples against the processes of globalization and; Search Snippet: ...of the struggle for indigenous self-determination. [FN113] Calls for indigenous self-determination, however, should not necessarily be interpreted as a challenge to state sovereignty, in that it is possible to enable indigenous self-determination without threatening the territorial integrity of state parties... 2020  
Chief Judge Gregory D. Smith , Bailee L. Plemmons The Court of Indian Appeals: America's Forgotten Federal Appellate Court 44 American Indian Law Review 211 (2020) C1-2Table of Contents I. Introduction. 212 II. A Short History Lesson on Tribal Courts. 214 III. The Court of Indian Offenses (What's in a Name?). 218 IV. Overview of the Court of Indian Appeals. 223 V. Comparison of the Court of Indian Appeals with Other American Federal Appellate Courts. 230 VI. Conclusion. 239; Search Snippet: ...the Department of the Interior. [FN8] The Kiowa Court of Indian Appeals explains this anomaly as follows: The Interior Department may... 2020  
Annie Rischard Davis The Cultural Property Conundrum: the Case for a Nationalistic Approach and Repatriation of the Moai to the Rapa Nui 44 American Indian Law Review 333 (2020) There is a temple in ruin stands, Fashion'd by long forgotten hands; Two or three columns, and many a stone, Marble and granite, with grass o'ergrown! Out upon Time! It will leave no more Of things to come than the things before! Out upon Time! Who for ever will leave But enough of the past and the future to grieve O'er that which hath been, and; Search Snippet: ...of operating under this framework are retroactivity and enforcement, the treaty or convention membership of the parties, the sovereignty of indigenous groups to bring claims themselves, and the underdeveloped structures for... 2020  
Anuj C. Desai The Dilemma of Interstatutory Interpretation 77 Washington and Lee Law Review 177 (Winter, 2020) Courts engage in interstatutory cross-referencing all the time, relying on one statute to help interpret another. Yet, neither courts nor scholars have ever had a satisfactory theory for determining when it is appropriate. Is it okay to rely on any other statute as an interpretive aid? Or, are there limits to the practice? If so, what are they? To; Search Snippet: ...2d 741, 744 (9th Cir. 1971) Federal policy toward particular Indian tribes is often manifested through a combination of general laws, special acts, treaties, and executive orders. All must be construed in pari materia... 2020  
George C. Thomas III The Double Jeopardy Clause and the Failure of the Common Law 53 Texas Tech Law Review Rev. 7 (Fall, 2020) Failure is too strong, of course, but one does want a title that grabs the reader's attention. Inadequacy is more accurate, as this Article shall endeavor to explain, but not nearly as dramatic. The Supreme Court has, over the past 100 years, sucked the life out of the Double Jeopardy Clause. The Court's failure, in large part, is not; Search Snippet: ...states could reprosecute after a federal verdict. [FN22] The dual sovereignty doctrine was later applied to permit each state to prosecute the same offense, [FN23] to permit Indian nations to prosecute independently of the federal government, [FN24] and... 2020  
Radhika Kannan The Effectiveness of Environmental Laws in Preventing Transboundary Pollution from Oil Drilling in the Arctic 45 Columbia Journal of Environmental Law 241 (2020) I. Introduction. 242 II. Background. 244 A. Arctic Geography. 244 B. The Arctic Environment. 246 C. The Environmental Problem of Offshore Drilling. 248 D. Current Sources of Authority. 250 1. Arctic Council. 250 2. United Nations Convention of the Law of the Sea (UNCLOS). 252 3. Espoo Convention. 253 4. International Convention on Oil Pollution; Search Snippet: ...knowledge, and a set of ethical principles for research. [FN86] Indigenous groups also pushed the passage of the Persistent Organic Pollutants (POPs) Treaty. [FN87] The POPs treaty implements control measures for the production... 2020  
Cormac M. Bloomfield The Endangered Species Act and Delisting Distinct Population Segments: Antithetical to the Statute or Permissible with Guidance? 30 Duke Environmental Law and Policy Forum 317 (Spring, 2020) I. Introduction. 318 II. The Endangered Species Act: A Primer. 320 A. Purpose of the ESA. 320 B. How Species are Listed Under the ESA. 320 C. How the ESA Protects Listed Species. 322 D. How a Species is Delisted. 323 E. Distinct Population Segments--ESA Protections for Populations at Risk. 324 III. Grizzlies of the Lower-48. 326 A. The Grizzly Bear; Search Snippet: ...played a central role in the traditions, ceremonies, and the sovereignty of the Native people. [FN1] As European settlers spread West, the grizzly's habitat... 2020  
Michael Doran The Equal-protection Challenge to Federal Indian Law 6 University of Pennsylvania Journal of Law & Public Affairs Aff. 1 (November, 2020) This article addresses a significant challenge to federal Indian law currently emerging in the federal courts. In 2013, the Supreme Court suggested that the Indian Child Welfare Act may be unconstitutional, and litigation on that question is now pending in the Fifth Circuit. The theory underlying the attack is that the statute distinguishes between; Search Snippet: ...counterparts. For example, section 177 of Title 25 prohibits any Indian nation or tribe of Indians from selling, granting, leasing, or otherwise conveying any land or title or claim to land, except by treaty or convention entered into pursuant to the Constitution. [FN11] In... 2020  
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