Law Commons^™

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 …

Saving The Constitution: Lincoln, Secession, And The Price Of Union, Craig S. Lerner

Michigan Law Review

The year is 1860. After failing to obtain, as he had expected, the Democratic Party nomination for President at its Charleston convention, Stephen Douglas abandons his candidacy. In the ensuing election, Democrat John C. Breckinridge of Kentucky edges Republican Abraham Lincoln. The official platform of the Democratic Party includes endorsement of the Dred Scott decision, slavery's expansion in the federal territories, rigorous enforcement of the Fugitive Slave Act, and elimination of the tariff. Abolitionists in New England are inconsolable. For several years, Henry Lloyd Garrison had advocated Northern secession, denouncing the Constitution as a "union with slaveholders," and "a covenant …

The Plight Of "Nappy-Headed" Indians: The Role Of Tribal Sovereignty In The Systematic Discrimination Against Black Freedmen By The Federal Government And Native American Tribes, Terrion L. Williamson

Michigan Journal of Race and Law

This Note concerns the role the government has played in the exclusion of Black Freedmen from Native American nations through its implementation and interpretation of the doctrine of tribal sovereign immunity ("tribal sovereignty" or "tribal immunity"). Part I discusses the background of the Freedmen within the Five Civilized Tribes and provides an overview of the doctrine of tribal sovereign immunity, including its role in the controversy concerning the status of Black Indians. Part II discusses the interpretations given to the doctrine of tribal sovereign immunity by United States courts and executive agencies and the effects of those interpretations on relations …

Religious Freedom And The Undoing Of The Westphalian State, Daniel Philpott

Michigan Journal of International Law

Not so long ago, in 1998, the world acknowledged both the fiftieth anniversary of the Universal Declaration of Human Rights and the 350th anniversary of the Peace of Westphalia. The Universal Declaration was celebrated in the popular press, by thousands of activists, and at well attended open forums at schools and universities. Westphalia was noted almost exclusively at academic conferences. But public obscurity is an undeserved fate for Westphalia, for its legacy in organizing our political world vies with that of the American and French revolutions. What Westphalia inaugurated was a system of sovereign states where a single authority resided …

Commentary To Professor Stephen D. Krasner, Jürgen Kurtz

Michigan Journal of International Law

Comment on Professor Stephen D. Krasner's The Hole in the Whole: Sovereignty, Shared Sovereignty, and International Law

The Essentially Contested Nature Of The Concept Of Sovereignty: Implications For The Exercise By International Organizations Of Delegated Powers Of Government, Dan Sarooshi

Michigan Journal of International Law

The relationship between the concept of sovereignty and international organizations is often posed as being problematic. The establishment and subsequent operations of international organizations are often characterized as involving the 'loss' of a State's sovereignty and as such have been viewed with suspicion, if not antagonism, by certain domestic commentators. The response in legal journals by supporters of international organizations has been too narrow, technical, and often simply reaffirms the fears of the domestic commentators by focusing on how the organization's exercise of powers constrains the State in the exercise of its powers. The approach adopted herein is different. It …

The Hole In The Whole: Sovereignty, Shared Sovereignty, And International Law, Stephen D. Krasner

Michigan Journal of International Law

Ideally, a body of law comprises a set of coherent and consistent rules. These rules contribute to the creation of an environment that is predictable, efficacious, and just. Most international lawyers hope, expect, or believe that such a body of law can exist for the international system. This is a fool's errand.

Beyond State Sovereignty: The Protection Of Cultural Heritage As A Shared Interest Of Humanity, Francesco Francioni

Michigan Journal of International Law

In this paper the author will try to explore the topic from a different perspective: i.e. the emergence of cultural heritage as part of the shared interest of humanity, with the consequent need for international law to safeguard it in its material and living manifestations, including the cultural communities that create, perform and maintain it. Culture in itself is not extraneous to the formation of the modern nation State. Especially in the history of nineteenth century Europe, culture as language, religion, literary and artistic traditions provided the cement and the legitimizing element to support the claim to independent statehood.

National Self-Determination And Ethnic Minorities, Olli Lagerspetz

Michigan Journal of International Law

The paper will include three parts. In the first part, the relation between nationality and popular sovereignty is explored. In the second part, there is a somewhat analogous discussion of the concept of ethnicity. In the last part, the conclusions are applied in a discussion of ethnic nationalism.

Diversity Or Cacophony? The Continuing Debate Over New Sources Of International Law, Kalypso Nicolaïdis, Joyce L. Tong

Michigan Journal of International Law

We have reached a point when lawyers' commissions are summoned to discuss the consequences of legal proliferation as an ill threatening the standing of international law through incompatibility or irrelevance. Should this trend towards fragmentation be reversed? Should we devise a legal non-proliferation treaty? Or should we, conversely, welcome the current diversification in the sources of law as reflecting the realities of today's world, as a reflection of the flexibility and adaptability of law when the norm of sovereignty on which it is based is itself undergoing considerable recalibration? In short: how should we deal theoretically as well as practically …

The War Against Iraq And The Future Of International Law: Hegemony Or Pluralism?, Andreas Paulus

Michigan Journal of International Law

This Article is devoted to the question of the future relevance of international law at a time when the idea of a "rule of law" in international affairs seems to be waning. Why should the sole superpower look to international law in its quest for protection from dangers of weapons of mass destruction and terrorists? Is the European insistence on questions of legality, which was visible in the dramatic British attempts to secure some kind of Security Council backing and to advance international legal arguments for its participation in the invasion of Iraq, more than a fig leaf for a …