Law Commons^™

Denial Of Justice: The Latest Indigenous Land Disputes Before The European Court Of Human Rights And The Need For An Expansive Interpretation Of Protocol 1, Giovanna E. Gismondi

Giovanna E. Gismondi

In its three latest decisions on indigenous land rights, the European Court of Human Rights (ECtHR) has afforded scant protection to indigenous peoples. Through an analysis of each case in terms of substantive and procedural law, this Article evaluates the challenges indigenous peoples face when pursuing their claims before the Court. I argue that the European Court's narrow interpretation of the "right to peaceful enjoyment of possessions" codified in Protocol 1 (Article 1) of the European Convention on Human Rights (ECHR) has failed to consider the importance of collective lands in securing the cultural survival of indigenous peoples, their economic …

In Search Of Women’S Equal Right To Property In India - Recent Judicial Developments, Archana Mishra

Archana Mishra

Women’s economic status influenced by her ownership and control over immovable property is hardly reflected in Indian society even after India having achieved independence more than half a century before. Effective rights to women in property cannot spring from closed and restrictive mindset of the legislature. The recent decisions of Supreme Court of India and various High Courts expanding the scope of much denied property rights to women in India encapsulate the essence and spirit of the Constitution. Some of the recent striking developments in the field of allowing property rights to women e.g., right of tribal women in property, …

Traditional Knowledge Rights And Wrongs, Sean Pager

Sean Pager

SourceURL:file://localhost/Users/sean/Documents/Folklore%20TK/Unpacking%20ABSTRACT.doc

Traditional Knowledge Rights and Wrongs

Sean A. Pager, Michigan State University

ABSTRACT

Should the intangible heritage of indigenous people be subject to intellectual property rights? After years of effort, international delegates are poised to complete a pair of ambitious treaties that would accomplish this goal. This Article provides the first detailed analysis and critique of the draft treaties, which provide for exclusive rights in traditional knowledge and cultural expression, respectively. Proponents of such protection often invoke both cultural integrity and economic justice rationales. Yet, these rationales dictate conflicting imperatives. To resolve these conflicts, the Article argues for greater differentiation …

Traditional Knowledge Rights And Wrongs, Sean Pager

Sean Pager

Should the intangible heritage of indigenous cultures be subject to intellectual property rights? After years of effort, international delegates are poised to complete a pair of ambitious treaties that would accomplish this goal. This Article provides the first detailed analysis and critique of the draft treaties, which provide for exclusive rights in traditional knowledge and cultural expression, respectively. Proponents of such protection often invoke both cultural integrity and economic justice rationales. Yet, these rationales dictate conflicting imperatives. To resolve these conflicts, the Article argues for greater differentiation between the two draft treaties based on subject matter. Just as copyright and …

Native American Tribal Disenrollment And Heritage, Christopher Doval N. Doval, Elin L. Cortijo-Doval Phd., Don A. Anque J.D.

Christopher Doval

The exercise and power of disenrollment is a sensitive topic for Native Americans. On one hand, disenrollment is important for self-determination. Yet, on the other, the ability to strip one of their legal status as a tribal member can also be seen as racial erasure. Recently, many tribes have begun to exile tribal members for various reasons. Long-standing family feuds and greed due to gaming profits are some of the alleged reasons why disenrollment occurs. Regardless of the reasons, many disenrolled Native Americans are questioning the validity of their ousting, which also calls into question the governing powers of Native …

The Treaty Of Waitangi In New Zealand's Law And Constitution In 2015, Matthew S. R. Palmer Qc

The Hon Justice Matthew Palmer

This lecture addresses issues concerning the place of the Treaty of Waitangi, including: implications of the Waitangi Tribunal's conclusions on sovereignty; the rationale behind historical Treaty settlements; and the future role of the Waitangi Tribunal.

Forfeiting Federalism: The Faustian Pact With Big Tobacco, Ryan Dreveskracht

Ryan Dreveskracht

This article discusses the effects of the largest legal settlement in United States history: the so-called Master Settlement Agreement, or “MSA.” Part I discusses the settlement generally, and its intended effect on the U.S. tobacco market. Parts II through IV discuss the unintended consequences of the settlement. Specifically, Part II considers how states got into their current disarray, and how a perceived state windfall of billions of dollars ended up putting states on what by all accounts now appears to be very real risk of insolvency. Part III examines how the major tobacco companies are using the states’ dire financial …

The Breach Of The Common Law Trust Relationship Between The United States And African Americans - A Substantive Right To Reparations, Ayesha B. Hardaway

Ayesha B. Hardaway

Domination and elaborate control of Africans in colonial America, and later the United States, were exerted to provide the requisite framework for the economically profitable Trans-Atlantic slave trade. Proponents of slavery characterized the aims of slavery in pseudo-paternalistic terms to “train” and “civilize[e] the untutored savage.”Even after the formal end of slavery, the U.S. and local governments continued to exercise its domination and elaborate control by enforcing a national system of racial segregation and discrimination. That system of government-sanctioned laws was so pervasive and commonly accepted that it has been personified as “Jim Crow.” As a result, racial hierarchy is …

The Status And Effect In New Zealand Law Of The Declaration On The Rights Of Indigenous Peoples, Matthew S. R. Palmer Qc

The Hon Justice Matthew Palmer

This paper outlines the ways in which the Declaration on the Rights of Indigenous Peoples is reflected in, and affects, New Zealand domestic law.

Bullshit And The Tribal Client, Matthew L.M. Fletcher

Matthew L.M. Fletcher

No abstract provided.

In The Name Of The Child: Race, Gender, And Economics In Adoptive Couple V. Baby Girl, Bethany Berger

Bethany Berger

On June 25, 2013, the Supreme Court decided Adoptive Couple v. Baby Girl, holding that the Indian Child Welfare Act did not permit the Cherokee father in that case to object to termination of his parental rights. The case is ostensibly about a dispute between prospective adoptive parents and a biological father. This Article demonstrates that it is about a lot more than that. It is a microcosm of anxieties about Indian-ness, race, and the changing nature of parenthood. While made in the name of the child, moreover, the decision supports practices and policies that do not forward and may …

The Recognition Of Indigenous Peoples’ Land: Application Of The Customary Land Rights Model On The Bedouin Case, Morad Elsana

Morad Elsana

ABSTRACT This paper introduces new possibilities for the recognition of Bedouin land in Israel. It shows that the application of the prevalent methods of indigenous land recognition is possible in the Bedouin case, and it would bring legal recognition of Bedouin land rights. The paper first presents the recognition of indigenous peoples land right in Canada, Australia, and other countries, while concentrating on the native title doctrine and the adoption of indigenous customary law. It shows how many colonial legal systems eventually discovered that their judicial systems included principles that recognize indigenous customary land rights. The application of such principles …

Self-Determination, Subordination, And Semantics: Rhetorical And Real-World Conflicts Over The Human Rights Of Indigenous Women, Sam Grey

Sam Grey

Indigenous women have long been engaged in unambiguous advocacy for a human rights-based approach to gender injustice in their communities and nations. Indigenous nations, for their part, have repeatedly and passionately posited collective human rights as necessary for the protection of cultural distinction. These projects should be reconcilable – but this reconciliation requires the political will to critically engage with historical and contemporary colonialism, and to address the internalization of patriarchy and sexism in Indigenous societies today. With such a will in place, it becomes possible to operationalize a single Indigenous ‘self-determination’ project grounded in human rights, one that sees …

Enforcing Tribal And State Court Civil Judgments In California, Jeremy Freedman

Jeremy Freedman

The purpose of this Note is to bring to light the growing need for a reciprocal approach to cross-jurisdictional enforcement of civil money judgments between California State and Indian tribal courts. In analyzing the issues with enforcement of civil judgments, this Note provides a practical solution that balances comity, sovereign immunity and the need to develop reciprocal solutions to problems created by two societies closely tied to each other. In order to resolve the growing issues affecting state and tribal courts, it is necessary to require reciprocity for enforcement of civil judgments.

Public Law 280 and principles of comity create …

Reburying An Injustice: Indigenous Human Remains In Museums And The Evolving Obligations To Return Remains To Indigenous Groups, Alex Bernick

Alex Bernick

No abstract provided.

Pirates Of The Australian Election, Matthew Rimmer

Matthew Rimmer

“Pirate parties” have proliferated across Europe and North America in the past decade, championing issues such as intellectual property (IP), freedom of speech, and the protection of privacy and anonymity.This year, the movement hit Australian shores: The Pirate Party Australia was officially registered by the Australian Electoral Commission in January 2013. (You can read its principles and platform here.)“More than ever before, there is a necessity in Australia for a party that holds empowerment, participation, free culture and openness as its central tenets”, Pirate Party founder Rodney Serkowski said in a press release announcing the group’s successful registration. Their first …

South Dakota: Making Dollars And Sense Of Indian Child Removal, Rachael Whitaker

Rachael Whitaker

South Dakota- Making Dollars and Sense of Indian Child Removal By: Rachael Whitaker In 2004, a South Dakota Governor’s Commission report adamantly denied claims that the state’s Department of Social Services (DSS) is “harvesting Indian children as a cash crop” and “runs nothing more than a state sponsored kidnapping program.” National Public Radio (NPR) broke a story in 2011, claiming South Dakota removed Indian children for profit. Since NPR’s report, the state has remained tight-lipped, advocates have threatened litigation, and Congress has asked for answers. South Dakota has a small population and economy, and it receives almost half of its …

Ownership Is Nine-Tenths Of Possession: How Disparate Conceptions Of Ownership Influence Possession Doctrines, Martin Hirschprung

martin hirschprung

Possession is nine-tenths of ownership. And yet, the concept of possession remains woefully unclear in the law, thereby rendering the very idea of ownership too somewhat murky. This Article argues that there exists a reflexive relationship between possession and ownership, and that one’s understanding of ownership and its incidents influence the very concept of possession, rather than vice-versa. The Article further argues that given this reality, the application of the concept of stewardship to question of possession can aid significantly in resolving some of the most important contemporary disputes regarding possession and ownership in society, such as disputes between museums …

Beyond Uniqueness: Reimagining Tribal Courts' Jurisdiction, Katherine J. Florey

Katherine J. Florey

If there is one point about tribal status that the Supreme Court has stressed for decades if not centuries, it is the notion that tribes as political entities are utterly one of a kind. This is to some extent reasonable; tribes, unlike other governments, have suffered the painful history of colonial conquest, making some distinctive treatment eminently justifiable. But recent developments have demonstrated to many tribes that uniqueness has its disadvantages. In the past few decades, the Supreme Court has undertaken a near-complete dismantling of tribal civil jurisdiction over nonmembers. Under current law, tribes have virtually no authority to permit …

What Place Does The Treaty Have In New Zealand's Constitutional Arrangements?, Matthew S.R. Palmer

The Hon Justice Matthew Palmer

In this address Matthew Palmer makes suggestions about how the Treaty of Waitangi should be reflected in New Zealand's constitutional arrangements.

The Promise And Perils Of Renewable Energy On Tribal Lands, Sara C. Bronin

Sara C. Bronin

In theory, the ninety-five million acres of tribal lands in the United States are perfect sites for the renewable energy infrastructure that could help to meet the energy needs of not just tribes, but the rest of the nation. They often have plentiful sunlight, wind, and open space, resources that are important prerequisites for renewable energy production. They are not necessarily governed by the land use or environmental regulations that sometimes inhibit energy projects in more densely populated areas. At the same time, on-site renewable energy may provide direct economic benefits for tribes, including “green jobs,” infrastructure improvements, and production …

An Elegy For Greg Ham: Copyright Law, The Kookaburra Case, And Remix Culture, Matthew Rimmer

Matthew Rimmer

The ‘Kookaburra’ case was a tragic and controversial copyright dispute, highlighting the need for copyright law reform by the Australian Parliament. In the Kookaburra case, a copyright action was brought by Larrikin Records against Men at Work’s song ‘Down Under’, alleging copyright infringement of the ‘Kookaburra’ song composed by Marion Sinclair. The dispute raised a host of doctrinal matters. There was disquiet over the length of the copyright term. There were fierce contests as to the copyright ownership of the ‘Kookaburra’ song. The litigation raised questions about copyright infringement and substantiality – particularly in relation to musical works. The ‘Kookaburra’ …

23andme Inc.: Patent Law And Lifestyle Genetics, Matthew Rimmer

Matthew Rimmer

The venture, 23andMe Inc., raises a host of issues in respect of patent law, policy, and practice in respect of lifestyle genetics and personalised medicine. The company observes: ‘We recognize that the availability of personal genetic information raises important issues at the nexus of ethics, law, and public policy’. 23andMe Inc. has tested the boundaries of patent law, with its patent applications, which cut across information technology, medicine, and biotechnology. The company’s research raises fundamental issues about patentability, especially in light of the litigation in Bilski v. Kappos, Mayo Collaborative Services v. Prometheus Laboratories Inc. and Association for Molecular Pathology …

Interstate Water Compact Version 3.0: Missouri River Basin Compact Drafters Should Consider An Inter-Sovereign Approach To Accommodate Federal And Tribal Interests In Water Resources, Jeffrey T. Matson

Jeffrey T Matson

In the aftermath of the historic 2011 Missouri River flood, Missouri River Basin (MRB) state representatives and governors criticize the U.S. Army Corps of Engineers (Corps) for operating the Missouri River Mainstem Reservoir System (System) in support of the multiple, often conflicting, purposes outlined in the Flood Control Act of 1944. These officials envision entering into an interstate compact to divest the Corps of some of its operational authority and to broaden their role in managing water resources. Similarly, MRB tribal leaders argue that the Corps fails to operate its System in a manner that respects the interrelated issues of …

A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: Remix Culture, Matthew Rimmer

Matthew Rimmer

RECOMMENDATIONSIn its issues paper, the Australian Law Reform Commission asks a number of inter-connected questions about transformative use, fair dealing, and fair use:Transformative useQuestion 14. How are copyright materials being used in transformative and collaborative ways—for example, in ‘sampling’, ‘remixes’ and ‘mashups’. For what purposes—for example, commercial purposes, in creating cultural works or as individual self-expression?Question 15. Should the use of copyright materials in transformative uses be more freely permitted? Should the Copyright Act 1968 (Cth) be amended to provide that transformative use does not constitute an infringement of copyright? If so, how should such an exception be framed?Question 16. …

A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: 3d Printing, Matthew Rimmer

Matthew Rimmer

RECOMMENDATIONSThe Australian Law Reform Commission poses a number of questions on the defence of fair use in Copyright and the Digital Economy.Question 52. Should the Copyright Act 1968 (Cth) be amended to include a broad, flexible exception? If so, how should this exception be framed? For example, should such an exception be based on ‘fairness’, ‘reasonableness’ or something else? Question 53. Should such a new exception replace all or some existing exceptions or should it be in addition to existing exceptions?The case study of 3D printing highlights how Australia would benefit from a defence of fair use.Recommendation 1 The narrow, …

A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: Disability Rights, Matthew Rimmer Dr

Matthew Rimmer

RECOMMENDATIONS

Recommendation 1 The Australian Government should take legislative action to implement Article 30 (3) of the United Nations Convention on the Rights of Persons with Disabilities 2006, which provides that ‘States Parties shall take all appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials’. This will involve revising the Copyright Act 1968 (Cth) – and addressing any direct or indirect disability discrimination.

Recommendation 2 The Australian Law Reform Commission should consider revising the Copyright Act 1968 …

A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: International Law, Matthew Rimmer Dr

Matthew Rimmer

The Australian Law Reform Commission poses a question in respect of international law in the issues paper on Copyright and the Digital Economy.Question 1. The ALRC is interested in evidence of how Australia’s copyright law is affecting participation in the digital economy. For example, is there evidence about how copyright law: a. affects the ability of creators to earn a living, including through access to new revenue streams and new digital goods and services; b. affects the introduction of new or innovative business models; c. imposes unnecessary costs or inefficiencies on creators or those wanting to access or make use …

A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: Consumer Rights, Matthew Rimmer

Matthew Rimmer

RECOMMENDATIONSThe Australian Law Reform Commission poses a number of inter-related questions about copyright law, personal use, consumer rights, and cloud computing:Cloud computingQuestion 5. Is Australian copyright law impeding the development or delivery of cloud computing services?Question 6. Should exceptions in the Copyright Act 1968 (Cth) be amended, or new exceptions created, to account for new cloud computing services, and if so, how?Copying for private useQuestion 7. Should the copying of legally acquired copyright material, including broadcast material, for private and domestic use be more freely permitted?Question 8. The format shifting exceptions in the Copyright Act 1968 (Cth) allow users to …

A Submission To The Australian Law Reform Commission On Copyright And The Digital Economy: Moral Rights, Matthew Rimmer

Matthew Rimmer

RECOMMENDATIONSThe Australian Law Reform Commission poses a question in respect of moral rights in the issues paper on Copyright and the Digital Economy.Question 18. The Copyright Act 1968 (Cth) provides authors with three ‘moral rights’: a right of attribution; a right against false attribution; and a right of integrity. What amendments to provisions of the Act dealing with moral rights may be desirable to respond to new exceptions allowing transformative or collaborative uses of copyright material?In response, I would emphasize a number of themes in respect of moral rights.Recommendation 1 There is a need for the Australian Law Reform Commission …