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Articles 1 - 9 of 9
Full-Text Articles in Law
Adoptive Couple V. Baby Girl: Two-And-A-Half Ways To Destroy Indian Law, Marcia A. Yablon-Zug
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
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
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
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
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
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 …
A Most Grievous Display Of Behavior: Self-Decimation In Indian Country, David E. Wilkins
A Most Grievous Display Of Behavior: Self-Decimation In Indian Country, David E. Wilkins
Jepson School of Leadership Studies articles, book chapters and other publications
Vine Deloria, Jr., the greatest indigenous philosopher of his day, wrote Custer Died for Your Sins: An Indian Manifesto in 1969. It was a spirited polemic that both galvanized and inspired Native peoples at home and abroad. Simultaneously, the book's powerful and trenchant words sent shock waves through non-Indian society. Deloria articulated a resurgent indigenous-centered understanding of sovereignty that had largely been suppressed by federal policy and law for nearly a century. Why did he emphasize the word "sovereignty"? Because he knew that Native nations needed to employ such concepts since they were familiar to both federal and state …
[Chapter 1 From] Hollow Justice: A History Of Indigenous Claims In The United States, David E. Wilkins
[Chapter 1 From] Hollow Justice: A History Of Indigenous Claims In The United States, David E. Wilkins
Bookshelf
This book, the first of its kind, comprehensively explores Native American claims against the United States government over the past two centuries. Despite the federal government's multiple attempts to redress indigenous claims, a close examination reveals that even when compensatory programs were instituted, native peoples never attained a genuine sense of justice. David E. Wilkins addresses the important question of what one nation owes another when the balance of rights, resources, and responsibilities have been negotiated through treaties. How does the United States assure that guarantees made to tribal nations, whether through a century old treaty or a modern day …
Never Construed To Their Prejudice: In Honor Of David Getches, Richard B. Collins
Never Construed To Their Prejudice: In Honor Of David Getches, Richard B. Collins
Publications
This article reviews and analyzes the judicial canons of construction for Native American treaties and statutes. It discusses their theoretical justifications and practical applications. It concludes that the treaty canon has ready support in contract law and the law of treaty interpretation. Justification of the statutory canon is more challenging and could be strengthened by attention to the democratic deficit when Congress imposes laws on Indian country. Applications of the canons have mattered in disputes between Indian nations and private or state interests. They have made much less difference, and have suffered major failings, in disputes with the federal government. …