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Articles 1 - 24 of 24
Full-Text Articles in Law
Natural Law, Assumptions, And Humility, Ezra Rosser
Natural Law, Assumptions, And Humility, Ezra Rosser
Articles in Law Reviews & Other Academic Journals
This review of Natural Property Rights celebrates Eric Claeys’s efforts to resuscitate natural law as a viable approach to property law. Although readers unlikely to be convinced that natural law is the way to best understand property rights, Claeys succeeds in breathing new life into natural law. Natural Property Rights’ emphasis on use as property law’s fundamental value creates space to reconceptualize the rights of property owners and the place of non-owners within a just theory of property rights. The main critiques of Natural Property Rights offered in this review center around the choice to prioritize rights over duties and …
Navajo Statehood: From Domestic Dependent Nation To 51st State, Ezra Rosser
Navajo Statehood: From Domestic Dependent Nation To 51st State, Ezra Rosser
Articles in Law Reviews & Other Academic Journals
The Supreme Court’s recent holding in Oklahoma v. Castro-Huerta that “Indian country is part of the State, not separate from the State” is a reminder of tribal sovereignty’s precarious foundation under U.S. law. The Court’s holding not only broke with longstanding precedent regarding the relationship between tribes and states, but it is also incompatible with the lived experience of those living in the Navajo Nation. The Navajo Nation, not the states and not the federal government, has primary responsibility for governing an area roughly the size of West Virginia. Yet most maps of the United States demarcate only state boundaries, …
Reclaiming The Navajo Range: Resolving The Conflict Between Grazing Rights And Development, Ezra Rosser
Reclaiming The Navajo Range: Resolving The Conflict Between Grazing Rights And Development, Ezra Rosser
Articles in Law Reviews & Other Academic Journals
Grazing is fundamental to Navajo identity, yet management of the Navajo range remains highly problematic. This Essay connects the federal government's devastating livestock reduction effort of the 1930s with the inability of the Navajo Nation to place meaningful limits on grazing and the power of grazing permittees. It argues that the Navajo Nation should consider reasserting the tribe's traditional understanding that property rights depend on use as a way to create space for reservation development.
The Washington Redskins Case And The Search For Dignity, Victoria Phillips
The Washington Redskins Case And The Search For Dignity, Victoria Phillips
Articles in Law Reviews & Other Academic Journals
INTRODUCTION: For more than sixty years, Native American activists have been involved in discussions and protests over the appropriation and use of tribal references in sports names, logos, and mascots. During this same period, many of these uses have since been changed, driven by civil rights struggles and a growing awareness of the proven social harms and racism inherent in these references. Despite a gradual movement towards abolition and evolving signs of cultural understanding, many mascots invoking Native names and imagery persist today across professional, collegiate, and local school district sports. These mascots and team names, and the trademarks associated …
Political Possibilities Of Reparations, Ezra Rosser
Political Possibilities Of Reparations, Ezra Rosser
Articles in Law Reviews & Other Academic Journals
This essay is a brief response to Gregory Alexander's article, published by Law and Social Inquiry, that generally argues against land reparations for past wrongs. This response argues that there are political reasons to leave land reparations on the table, focusing on the claims of Native American tribes.
Stabilizing Morality In Trademark Law, Christine Haight Farley
Stabilizing Morality In Trademark Law, Christine Haight Farley
Articles in Law Reviews & Other Academic Journals
Almost all of the commentary concerning the statutory prohibition on registering offensive trademarks lambasts it as a misguided attempt to enforce civility through trademark law. This Article carefully considers the challenges accompanying section 2(a) of the U.S. Trademark Act and defends it as good policy. There are, however, a few instances in which the jurisprudence under section 2(a) has created more problems than it has solved. To alleviate these problems, this Article proposes judging words per se and abandoning the traditional trademark notion of evaluating words in context. Judging words per se is warranted given the very different objectives underlying …
Creating Space For Reservation Growth, Ezra Rosser
Creating Space For Reservation Growth, Ezra Rosser
Articles in Law Reviews & Other Academic Journals
This brief article is a review of Robert J. Miller, Reservation "Capitalism": Economic Development in Indian Country (2012). It highlights some of the significant points Miller makes in his book and concludes that the book is a "must read" for those interested in reservation economic development.
Ahistorical Indians And Reservation Resources, Ezra Rosser
Ahistorical Indians And Reservation Resources, Ezra Rosser
Articles in Law Reviews & Other Academic Journals
The article is an in-depth exploration of the impacts of an Indian tribe's decision to pursue an environmentally destructive form of economic development. The history of Navajo Nation's coal leasing provides the background for the tribe's recent proposal to build a coal-fired power plant and the controversies surrounding the proposal and the environmental review process.
Assumptions Regarding Indians And Judicial Humility: Thoughts From A Property Law Lens, Ezra Rosser
Assumptions Regarding Indians And Judicial Humility: Thoughts From A Property Law Lens, Ezra Rosser
Articles in Law Reviews & Other Academic Journals
Negative assumptions regarding Indians can be found in the recent decisions of the U.S. Supreme Court, and attention to these assumptions is required if courts are to base their decisions on how Indians and non-Indians actually impact each other. This brief article uses a property and liability rules framework to argue for judicial restraint when considering cases that could limit tribal sovereignty.
Customary Law: The Way Things Were, Codified, Ezra Rosser
Customary Law: The Way Things Were, Codified, Ezra Rosser
Articles in Law Reviews & Other Academic Journals
Frequently referred to as customary law, the unique traditions and customs of different Native American tribes are cited by their tribal courts as authoritative and binding law. The recent use of customary law as a mechanism for deciding individual cases is not uniform among tribal court systems as it differs depending upon which tribe's judges are working to place custom into contemporary judicial analysis. Understanding the present role of customary law in tribal law requires first understanding the nature of customary law and then understanding how it is being used. The effect of customary law is dependent upon the place …
Protecting Non-Indians From Harm? The Property Consequences Of Indians, Ezra Rosser
Protecting Non-Indians From Harm? The Property Consequences Of Indians, Ezra Rosser
Articles in Law Reviews & Other Academic Journals
This article is an exploration of the assumption, last made by the U.S. Supreme Court in City of Sherrill v. Oneida Indian Nation of New York, that non-Indian property owners are harmed by Indian acquisition and control of land. Accepting for the moment the Court's prioritization of a non-Indian perspective, the article explores (a) what lies behind non-Indian resistance to Indian land ownership, and (b) whether in fact non-Indians are harmed by proximity to Indian land. The article combines in its analysis core property law concepts with an empirical examination of the changes over time in assessed land value of …
Obligations Of Privilege, Ezra Rosser
Obligations Of Privilege, Ezra Rosser
Articles in Law Reviews & Other Academic Journals
Little attention is paid to the nature of the high incomes of the rich or to the legal or norm-based obligations the rich owe society. This popular and scholarly inattention reflects the general acceptance of the idea that the rich have earned their high incomes and owe society little. By looking at income equations revealing society's role in high incomes and the obligations of the rich, the Article urges a strengthening of the obligations of the rich and rejects the argument that the legal community ought not consider the moral demands associated with high incomes.
Inter-American System, Diego Rodriguez-Pinzon
Inter-American System, Diego Rodriguez-Pinzon
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Inter-American System, Diego Rodriguez-Pinzon
Inter-American System, Diego Rodriguez-Pinzon
Articles in Law Reviews & Other Academic Journals
No abstract provided.
The Moiwana Village Case, Claudia Martin
The Moiwana Village Case, Claudia Martin
Articles in Law Reviews & Other Academic Journals
Moiwana Village is the second case to be decided by the Inter-American Court on Human Rights against Suriname in which the victims are members of an ethnic community that descends from'Bush Negroes' or 'Maroons', namely escaped former slaves who established new autonomous communities in the eastern part of Suriname. In contrast to its prior judgment, in Moiwana the Court shows a striking evolution in its case law regarding the treatment of ethnic or group rights. This approach, which may be traced back to previous case law on the rights of indigenous communities, affords an enhanced protection to members of an …
Caution, Cooperative Agreements, And The Actual State Of Things: A Reply To Professor Fletcher, Ezra Rosser
Caution, Cooperative Agreements, And The Actual State Of Things: A Reply To Professor Fletcher, Ezra Rosser
Articles in Law Reviews & Other Academic Journals
This short article argues that tribal governments considering entering into cooperative agreements with federal, state, or local governments ought to maintain a healthy skepticism regarding the non-tribal governments sitting across from them at the negotiating table and the appropriateness of entering into cooperative agreements.
Rural Housing And Code Enforcement: Navigating Between Values And Housing Types, Ezra Rosser
Rural Housing And Code Enforcement: Navigating Between Values And Housing Types, Ezra Rosser
Articles in Law Reviews & Other Academic Journals
This paper focuses on the relationship between rural housing and building codes. The paper covers the relationship between the existing urban based literature on housing conditions and the rural housing situation as well as a theoretical exploration of different ways of understanding value in housing. Finally, two rural case studies - the Navajo Nation and a small Colorado subdivision - illustrate the challenges of rural housing code enforcement and demonstrate how officials could benefit from the model.
This Land Is My Land, This Land Is Your Land: Markets And Institutions For Economic Development On Native American Reservations, Ezra Rosser
Articles in Law Reviews & Other Academic Journals
This paper presents the current land regime and nature of economic development found on most Native American reservations, drawing predominantly from the Navajo Nation. It then considers the situation according to (1) neo-classical economics and (2) New Institutional Economics (NIE). The paper begins with the paired assumptions that economic growth can and should reach reservations and that the U.S. and tribal governments can improve upon past performance and institutional arrangements. Policy solutions to reservation commercial and light industrial underdevelopment, corresponding to each economic perspective in turn, are then discussed. The paper broadens the range of policy options available to tribes …
The Trade-Off Between Self-Determination And The Trust Doctrine: Tribal Government And The Possibility Of Failure, Ezra Rosser
The Trade-Off Between Self-Determination And The Trust Doctrine: Tribal Government And The Possibility Of Failure, Ezra Rosser
Articles in Law Reviews & Other Academic Journals
This paper argues that tribes and scholars need to come to grips with the trade-off between trust and self-determination, and that failure to do so-by for example expressing a yearning that the trust doctrine was stronger-will lead to poor choices by tribes. Choices thus need to be based on an understanding of this trade-off and tribes must be aware that exercising self-determination inevitably will lead to a weakening of the trust doctrine over the areas which tribe's assume authority. This point is illustrated using a close analysis of the arguments used by the parties and the Supreme Court's treatment of …
Inter-American System, Diego Rodriguez-Pinzon
Inter-American System, Diego Rodriguez-Pinzon
Articles in Law Reviews & Other Academic Journals
No abstract provided.
The Nature Of Representation: The Cherokee Right To A Congressional Delegate, Ezra Rosser
The Nature Of Representation: The Cherokee Right To A Congressional Delegate, Ezra Rosser
Articles in Law Reviews & Other Academic Journals
This paper explores the history and present day implications of the Cherokee Nation's 1835 treaty-based right to a Congressional Delegate.
Every Man Has A Right To Decide His Own Destiny: The Development Of Native Hawaiian Self-Determination Compared To Self-Determination Of Native Alaskans And The People Of Puerto Rico, Michael W. Carroll
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Palabras Del Presidente De La Comision Interamericana De Derechos Humanos En La Sesion Inaugural Del 95, Claudio Grossman
Palabras Del Presidente De La Comision Interamericana De Derechos Humanos En La Sesion Inaugural Del 95, Claudio Grossman
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Protecting Folklore Of Indigenous Peoples: Is Intellectual Property The Answer?, Christine Farley
Protecting Folklore Of Indigenous Peoples: Is Intellectual Property The Answer?, Christine Farley
Articles in Law Reviews & Other Academic Journals
What can the Navajos do to prevent non-Navajos from using Navajo rug patterns to produce rugs overseas using cheap material and labor, thereby undercutting the Navajos themselves in a market for their famous rugs? What can the Australian Aboriginal peoples do when their sacred and secret imagery is reporduced on carpets they did not make, and sold to non-Aboriginals, who will inevitably walk on them? Do these communities have any legal rights to these pieces of their culture? Does the law provide any means for them to take back their culture or to prevent further poaching?https://papers.ssrn.com/sol3/papers.cfm?abstract_id=923410