Law Commons^™

Disparaging Trademarks: Who Matters, Jasmine Abdel-Khalik

Michigan Journal of Race and Law

For more than a century, non-majority groups have protested the use of trademarks comprised of or containing terms referencing the group—albeit for various reasons. Under the 1946 Lanham Act, Congress added a prohibition against registering disparaging trademarks, which could offer protection to non-majority groups targeted by the use of trademarks offensive to members of the group. The prohibition remained relatively unclear, however, and rarely applied in that context until a group of Native Americans petitioned to cancel the Washington NFL team’s trademarks as either scandalous, offensive to the general population, or disparaging, offensive to the referenced group. In clarifying the …

Tribal Disruption And Indian Claims, Matthew L.M. Fletcher, Kathryn E. Fort, Dr. Nicholas J. Reo

Michigan Law Review First Impressions

Legal claims are inherently disruptive. Plaintiffs' suits invariably seek to unsettle the status quo. On occasion, the remedies to legal claims can be so disruptive-that is, impossible to enforce or implement in a fair and equitable manner-that courts simply will not issue them. In the area of federal Indian law, American Indian tribal claims not only disrupt the status quo but may even disrupt so-called settled expectations of those affected by the claims. The U.S. Court of Appeals for the Second Circuit has dismissed a round of Indian land claims at the pleading stage, includingOnondaga Nation v. New York, because …

Adoptive Couple V. Baby Girl: Two-And-A-Half Ways To Destroy Indian Law, Marcia A. Yablon-Zug

Michigan Law Review First Impressions

In December 2011, Judge Malphrus of the South Carolina family court ordered Matt and Melanie Capobianco to relinquish custody of Veronica, their two-year-old, adopted daughter, to her biological father, Dusten Brown. A federal statute known as the Indian Child Welfare Act ("ICWA") mandated Veronica's return. However, the court's decision to return Veronica pursuant to this law incited national outrage and strident calls for the Act's repeal. While this outrage was misplaced, it may nonetheless have influenced the U.S. Supreme Court's decision to hear the appeal. The case of Adoptive Couple v. Baby Girl is emotionally complicated, but it is not …

Protecting Intangible Cultural Resources: Alternatives To Intellectual Property Law, Gerald Carr

Michigan Journal of Race and Law

Cultural resources can be defined as "the tangible and intangible effects of an individual or group of people that define their existence, and place them temporally and geographically in relation to their belief systems and their familial and political groups, providing meaning to their lives." The field of cultural resources includes tangible items, such as land, sacred sites, and religious and finerary objects. The field also includes intangible knowledge and customs, such as tribal names, symbols, stories, and ecological, ethnopharmacological, religious, or other traditional knowledge. The tangible cultural resources of tribes can fall under the protection of statutes such as …

The Right To Counsel For Indians Accused Of Crime: A Tribal And Congressional Imperative, Barbara L. Creel

Michigan Journal of Race and Law

Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it …

A Native Vision Of Justice, Carole Goldberg

Michigan Law Review

Although largely unheralded in its time, D'Arcy McNickle's The Surrounded has become a classic of Native American literature. When the University of New Mexico Press reissued the book in 1978, a year after McNickle's death, the director of Chicago's Newberry Library, Lawrence W. Towner, predicted (correctly) that it would "reach a far wider audience." Within The Surrounded are early stirrings of a literary movement that took flight several decades after the novel's first publication in the writings of N. Scott Momaday, Louise Erdrich, James Welch, Leslie Marmon Silko, and Gerald Vizenor, among others. All of these Native American authors share …

Uncounseled Tribal Court Guilty Pleas In State And Federal Courts: Individual Rights Versus Tribal Self-Governance, Christiana M. Martenson

Michigan Law Review

Indian tribes in the United States are separate sovereigns with inherent self-governing authority. As a result, the Bill of Rights does not directly bind the tribes, and criminal defendants in tribal courts do not enjoy the protection of the Sixth Amendment right to counsel. In United States v. Ant, a defendant - without the legal assistance that a state or federal court would have provided - pled guilty to criminal charges in tribal court. Subsequently, the defendant faced federal charges arising out of the same events that led to the tribal prosecution. The Ninth Circuit in Ant barred the federal …

Toward Genuine Tribal Consultation In The 21st Century, Colette Routel, Jeffrey Holth

University of Michigan Journal of Law Reform

The federal government's duty to consult with Indian tribes has been the subject of numerous executive orders and directives from past and current U.S. Presidents, which have, in turn, resulted in the proliferation of agency-specific consultation policies. However, there is still no agreement regarding the fundamental components of the consultation duty. When does the consultation duty arise? And what does it require of the federal government? The answers to these questions lie in the realization that the tribal consultation duty arises from the common law trust responsibility to Indian tribes, which compels the United States to protect tribal sovereignty and …

Embracing Tribal Sovereignty To Eliminate Criminal Jurisdiction Chaos, Lindsey Trainor Golden

University of Michigan Journal of Law Reform

This Note argues that the current federal laws regarding tribal criminal jurisdiction are contrary to existing policies that recognize inherent tribal sovereignty, and that to fully restore tribal sovereignty and reduce reservation crime rates, Congress should revise the MCA and the TLOA to comprehensively address the legal barriers that adversely affect tribes' ability to prosecute crimes committed within their geographic borders. Part I outlines the historical progression of laws addressing criminal jurisdiction in Indian Country and identifies the problems with the law's disregard and displacement of tribal sovereignty. Part II examines the current state of criminal jurisdiction on reservations-focusing on …

Foreign Investment And Indigenous Peoples: Options For Promoting Equilibrium Between Economic Development And Indigenous Rights, George K. Foster

Michigan Journal of International Law

The quotations above refer to distinct conflicts that are widely separated by time and geography but remarkably similar in other respects. The first describes events leading to the Black Hills War of 1876, in which the U.S. Army forced the Lakota Sioux and Northern Cheyenne onto reservations to make way for gold mining by non-Indians. The second describes a violent episode in a conflict between native groups and the Peruvian government, which began in 2009 when the government took steps to expand mining and oil operations by multinational enterprises (MNEs) in the Peruvian Amazon. In both cases, outside commercial interests …

Towards A Balanced Approach For The Protection Of Native American Sacred Sites, Alex Tallchief Skibine

Michigan Journal of Race and Law

Protection of "sacred sites" is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples. The Supreme Court in Oregon v. Smith held that rational basis review, and not strict scrutiny, was the appropriate level of judicial review when evaluating the constitutionality of neutral laws of general applicability even when these laws impacted one's ability to practice a religion. Reacting to the decision, Congress enacted the Relgious Freedom Restoration Act (RFRA), which reinstated the strict scrutiny test for challenges to neutral laws of general …

Steps To Alleviating Violence Against Women On Tribal Lands, Anjum Unwala

University of Michigan Journal of Law Reform Caveat

One in three Native American women has been raped or has experienced an attempted rape. Federal officials also failed to prosecute 75% of the alleged sex crimes against women and children living under tribal authority. The Senate bill to reauthorize the 1994 Violence Against Women Act (VAWA) could provide appropriate recourse for Native American women who are victims of sexual assault. This bill (S. 1925), introduced in 2011, would grant tribal courts the ability to prosecute non-Indians who have sexually assaulted their Native American spouses and domestic partners. Congress has quickly reauthorized the Violence Against Women Act twice before. But …

Williams V. Lee And The Debate Over Indian Equality, Bethany R. Berger

Michigan Law Review

Williams v. Lee (1959) created a bridge between century-old affirmations of the immunity of Indian territories from state jurisdiction and the tribal self-determination policy of the twentieth century. It has been called the first case in the modern era of federal Indian law. Although no one has written a history of the case, it is generally assumed to be the product of a timeless and unquestioning struggle of Indian peoples for sovereignty. This Article, based on interviews with the still-living participants in the case and on examination of the congressional records, Navajo council minutes, and Supreme Court transcripts, records, and …

An Analysis Of Article 28 Of The United Nations Declaration On The Rights Of Indigenous Peoples, And Proposals For Reform, David Fautsch

Michigan Journal of International Law

The purpose of this Note is two-fold: first, to demonstrate why the standards set out in Article 28 require further clarification, and second, to propose reforms (both inside and outside of the United Nations framework) that might benefit indigenous peoples claiming land rights.

Connecting The Dots Between The Constitution, The Marshall Trilogy, And United States V. Lara: Notes Toward A Blueprint For The Next Legislative Restoration Of Tribal Sovereignty, Ann E. Tweedy

University of Michigan Journal of Law Reform

This law review Article examines: (1) the underpinnings of tribal sovereignty within the American system; (2) the need for restoration based on the Court's drastic incursions on tribal sovereignty over the past four decades and the grave circumstances, particularly tribal governments' inability to protect tribal interests on the reservation and unchecked violence in Indian Country, that result from the divestment of tribal sovereignty; (3) the concept of restoration as illuminated by United States v. Lara, and finally (4) some possible approaches to partial restoration.

The Article first evaluates the constitutional provisions relating to Indians and the earliest federal Indian law …

In Defense Of The Indian Child Welfare Act In Aggravated Circumstances, C. Eric Davis

Michigan Journal of Race and Law

The Indian Child Welfare Act (ICWA) affords various protections to Indian families throughout child welfare proceedings. Among them is the duty imposed upon the state to provide rehabilitative services to families prior to the outplacement of an Indian child, or termination of parental rights. An analogous provision for non-Indians in the Adoption and Safe Families Act (ASFA) excuses rehabilitative services in "aggravated circumstances" of child abuse. The ICWA contains no such exception, and that absence has been controversial. In 2002, the Alaska Supreme Court applied ASFA's aggravated circumstances exception to the ICWA, thereby excusing services when a father severely abused …

Indigenous Recognition In International Law: Theoretical Observations, Patrick Macklem

Michigan Journal of International Law

This Essay addresses this question in the context of the evolving status of indigenous peoples in international law. International instruments vest rights in indigenous peoples, and establish indigenous peoples as international legal actors to whom States and other international legal actors owe legal duties and obligations. These developments began between the First and Second World Wars, when the International Labour Organization (ILO) began to supervise indigenous working conditions in colonies. They continued after the Second World War with ILO Conventions No. 107 and 169, which vested rights in indigenous populations located in States that are a party to their terms. …

Preserving The Seeds Of Gender Fluidity: Tribal Courts And The Berdache Tradition, Andrew Gilden

Michigan Journal of Gender & Law

This Article outlines the particular cultural characteristics giving rise to traditional berdachism, the means by which American policies fostered their decline, and the Navajo tribal courts' re-infusion of these characteristics into contemporary jurisprudence. By tracking the interplay between the traditional values of child autonomy, gender equality, and tribal collectivism, the rise, fall and potential reemergence of the berdache tradition can be analyzed as resulting from shifts in its determinative cultural elements.

The Pocahontas Exception: The Exemption Of American Indian Ancestry From Racial Purity Law, Kevin Noble Maillard

Michigan Journal of Race and Law

"The Pocahontas Exception" confronts the legal existence and cultural fascination with the eponymous "Indian Grandmother." Laws existed in many states that prohibited marriage between Whites and non- Whites to prevent the "quagmire of mongrelization." Yet, this racial protectionism, as ingrained in law, blatantly exempted Indian blood from the threat to White racial purity. In Virginia, the Racial Integrity Act of 1924 made exceptions for Whites of mixed descent who proudly claimed Native American ancestry from Pocahontas. This Paper questions the juridical exceptions made for Native American ancestry in antimiscegenation statutes, and analyzes the concomitant exemptions in contemporary social practice. With …

A Race Or A Nation? Cherokee National Identity And The Status Of Freedmen's Descendants, S. Alan Ray

Michigan Journal of Race and Law

This Article examines the Cherokee Freedmen controversy to assess whether law and biology can function as sufficient models for crafting Cherokee identity at this crucial moment in the tribe's history. The author will argue that while law and biology are historically powerful frames for establishing tribal self-identity, they are inadequate to the task of determining who should enjoy national citizenship. The wise use of sovereignty, the author suggests, lies in creating a process of sustained dialogical engagement among all stakeholders in the definition of Cherokee citizenship on the question of Cherokee identity. This dialogue should ideally have been undertaken before …

Rethinking Customary Law In Tribal Court Jurisprudence, Matthew L.M. Fletcher

Michigan Journal of Race and Law

Customary law still appears in many of the decisions of American state and federal courts. Modern courts rely less on customary law, part and parcel of the English common law adopted and adapted by the Founders of the United States, with statutory and administrative law dominating the field. In contrast, the importance of customary law in American Indian tribal courts cannot be understated. Indian tribes now take every measure conceivable to preserve Indigenous cultures and restore lost cultural knowledge and practices. Tribal court litigation, especially litigation involving tribal members and issues arising out of tribal law, often turns on the …

A Tale Of Conflicting Sovereignties: The Case Against Tribal Sovereign Immunity And Federal Preemption Doctrines Preventing States' Enforcement Of Campaign Contribution Regulations On Indian Tribes, Paul Porter

University of Michigan Journal of Law Reform

This Note will discuss whether Indian tribes can assert tribal sovereign immunity to avoid compliance with state campaign finance regulation and whether such regulations should be preempted by federal law. Tribal sovereign immunity is not an enshrined constitutional imperative; it exists only under federal common law and can be limited by the courts from blocking state suits to enforce campaign finance regulations against tribes. This Note will also argue that state campaign finance regulations should not be preempted by federal law because states have a compelling interest in protecting their political processes from corruption that outweighs tribal interests in flouting …

Two Spirits, Two Eras, Same Sex: For A Traditionalist Perspective On Native American Tribal Same-Sex Marriage Policy, Jeffrey S. Jacobi

University of Michigan Journal of Law Reform

Recently, several states amended their constitutions to define marriage as only a union between a man and a woman. Many Native American Indian tribal governments thereafter also adopted laws prohibiting homosexual marriages. However, this new policy conflicts with traditional tribal values. This Note shows that historically many tribes accepted and even honored same-sex unions. This Note proposes that tribes consider their traditions as they existed before European contact, and argues that, for some tribes, same-sex civil unions are a historically and culturally appropriate answer to the modern objections to same-sex marriage.

American Indians, Crime, And The Law, Kevin K. Washburn

Michigan Law Review

This Article evaluates the federal Indian country criminal justice regime, not against norms of Indian law and policy, but against those of criminal law and policy. Specifically, this Article evaluates the federal constitutional norms that lie at the heart of American criminal justice and that are designed to ensure the legitimacy of federal criminal trials. Toward that end, Part I presents a critical description of key facets of the federal Indian country criminal justice system. Part II begins the critical evaluation by evaluating a key institutional player in the federal system, the federal prosecutor. It highlights the handicaps faced by …

Regional Projects Require Regional Planning: Human Rights Impacts Arising From Infrastructure Projects, Abby Rubinson

Michigan Journal of International Law

Regional projects require regional planning to avoid potentially disastrous environmental and human rights abuses. Focusing on the Rio Madeira project in Brazil as a case study in the impacts of infrastructure projects, this Note identifies the harm anticipated from these projects and highlights the need for verification of official predictions of such harm. It then proceeds to a legal analysis, addressing the applicable international law, Brazilian law, and regional legal frameworks and outlining the negative legal consequences arising from inadequate impact assessments. In light of these negative legal implications, the Note concludes by illustrating the need to proceed with planning …

The Tribal Sovereign As Citizen: Protecting Indian Country Health And Welfare Through Federal Environmental Citizen Suits, James M. Grijalva

Michigan Journal of Race and Law

This Article suggests that federal environmental citizen suits can serve tribal sovereignty interests without presenting the legal risks tribes face when they attempt direct regulation of non-Indians. Section I briefly describes governmental regulatory roles tribes may play in the implementation of federal environmental law and policy. Section II overviews the conceptual and procedural framework for tribal claims as "citizens." Section III argues that in bringing environmental citizen suits, tribal governments exercise their inherent sovereign power and responsibility to protect the health and welfare of tribal citizens and the quality of the Indian country environment. Section IV concludes that, while suits …

Engaging The Spirit Of Racial Healing Within Critical Race Theory: An Exercise In Transformativethought, Rebecca Tsosie

Michigan Journal of Race and Law

This essay posits that Critical Race Theory (CRT) must operate at both the "idealist" and "materialist" levels. Although the emphasis may be in one direction or another at particular times, both domains are continually engaged. This essay links the debate between the "materialist" and "idealist" views to another central theme within CRT, which is the need for "justice" and how the law relates to justice. This essay focuses on the contemporary debate surrounding the status of Native Hawaiians to show how "race" is being used to construct the civil and political rights of Native Hawaiian people. CRT is a jurisprudence …

Tribal Employment Separation: Tribal Law Enigma, Tribal Governance Paradox, And Tribal Court Conundrum, Matthew L.M. Fletcher

University of Michigan Journal of Law Reform

Each year, more and more people--Indians and non-Indians--are employed by Indian Tribes and Tribally-chartered organizations. However, as Tribal employment grows, so do the problems associated with personnel disputes. Tribal employment is different than traditional corporate or even government employment because Tribal communities are incredibly close-knit and Tribal governments are very accountable to their constituents. Because of this dynamic, employment separations can create excessive difficulty within a Tribe. Many Tribal courts apply the principles of the Supreme Court's decision in Loudermill, granting terminated employees the right to both an administrative and judicial hearing. However, these processes can often be incredibly painful …

Tribal Jurisdiction And Domestic Violence: The Need For Non-Indian Accountability On The Reservation, Amy Radon

University of Michigan Journal of Law Reform

Domestic violence is a severe problem for tribes across the nation, as their female members are victimized at highly disproportionate rates compared to members of dominant society. Many tribes have sophisticated domestic violence codes to combat the problem, but they are powerless to prosecute the majority of those who will abuse Indian women: non-Indian men. In 1978 the Supreme Court stripped tribes of their power to prosecute non-Indians in criminal matters, which not only damaged tribal sovereignty but also meant the difference between a life free from abuse and one with constant fear, intimidation, and pain for Indian women.

The …

A Whole New Game: Recognizing The Changing Complexion Of Indian Gaming By Removing The "Governor's Veto" For Gaming On "After-Acquired Lands", Brian P. Mcclatchey

University of Michigan Journal of Law Reform

The recent explosive growth of the Indian gaming industry and judicial decisions analyzing a portion of the governing statute point to an inherent flaw in the mechanism provided by the Indian Gaming Regulatory Act (IGRA) for the establishment of off-reservation gaming enterprises. This Note argues for a reform of the so-called "after-acquired lands" provision of IGRA, which would remove the governor's concurrence requirement and place the decision to allow Indian gaming off-reservation into the negotiating process between states and tribes, as another term to be negotiated between sovereigns. Such a reform would allow states and tribes alike to extract their …