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Articles 1351 - 1380 of 13877

Full-Text Articles in Indigenous, Indian, and Aboriginal Law

Indigenous Environmental Justice, Knowledge And Law, Deborah Mcgregor Nov 2018

Indigenous Environmental Justice, Knowledge And Law, Deborah Mcgregor

Articles & Book Chapters

This article is based on a paper prepared for the convening of Over the Line: A Conversation about Race, Place, and the Environment, coordinated by In-grid Waldron; it was thus originally delivered in the context of a community of scholars interested and engaged in environmental justice (EJ) as well as anti-racism scholarship and activism. Conversations at the symposium were rich and deep, introducing novel ideas and generating a synergistic energy among those present. While this article builds upon the knowledge, experiences, and perspectives shared at the event, it also aims to introduce a distinct conception of Indigenous environmental justice (IEJ) …

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Patently Absurd: Critiquing The Uspto’S Disparate Treatment Of Tribal And State Immunity In Inter Partes Review, Maya Ginga Nov 2018

Patently Absurd: Critiquing The Uspto’S Disparate Treatment Of Tribal And State Immunity In Inter Partes Review, Maya Ginga

Washington and Lee Law Review

No abstract provided.

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Minding The Gap: Improving Parental Involvement To Bridge Education Gaps Between American Indian And Non-Indian Students, Cassidy Wadsworth Skousen Nov 2018

Minding The Gap: Improving Parental Involvement To Bridge Education Gaps Between American Indian And Non-Indian Students, Cassidy Wadsworth Skousen

Brigham Young University Education and Law Journal

No abstract provided.

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From Foundational Law To Limiting Principles In Federal Indian Law, Alexander Tallchief Skibine Nov 2018

From Foundational Law To Limiting Principles In Federal Indian Law, Alexander Tallchief Skibine

Utah Law Faculty Scholarship

In this Article, I am arguing that one of the reasons animating the Court’s move away from Justice Marshall’s exceptionalism is its fear that under traditional foundational principles of federal Indian law, Indian tribes may gain what the court subjectively perceives to be “unfair” advantages over non-Indians. Therefore, the Court has been looking for limiting principles tending to achieve level playing fields between tribal and non-tribal actors. This Article also argues, however, that while looking for a level playing field may sound like a worthwhile goal, there are many pitfalls involved in this process that may end up hurting tribal …

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What We Don't See When We See Copyright As Property, Jessica Litman Nov 2018

What We Don't See When We See Copyright As Property, Jessica Litman

Articles

For all of the rhetoric about the central place of authors in the copyright scheme, our copyright laws in fact give them little power and less money. Intermediaries own the copyrights, and are able to structure licenses so as to maximise their own revenue while shrinking their pay-outs to authors. Copyright scholars have tended to treat this point superficially, because – as lawyers – we take for granted that copyrights are property; property rights are freely alienable; and the grantee of a property right stands in the shoes of the original holder. I compare the 1710 Statute of Anne, which …

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Western Organization Of Resource Councils V. United States Bureau Of Land Management, Seth Sivinski Oct 2018

Western Organization Of Resource Councils V. United States Bureau Of Land Management, Seth Sivinski

Public Land & Resources Law Review

To what extent must the BLM analyze potential climate change impacts where millions of acres of public lands and federal mineral estates are being considered for coal development? Western Organization of Resource Councils v. BLM addresses this, setting the scope for NEPA-mandated environmental impact analysis and reasonable alternative consideration by federal agencies. Judge Brian Morris of the District of Montana eschewed BLM’s assertions that considering climate impacts would be speculative, instead requiring BLM to acknowledge scientific reality and include modern climate science in its NEPA review analysis.

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Highway Culverts, Salmon Runs, And The Stevens Treaties: A Century Of Litigating Pacific Northwest Tribal Fishing Rights, Ryan Hickey Oct 2018

Highway Culverts, Salmon Runs, And The Stevens Treaties: A Century Of Litigating Pacific Northwest Tribal Fishing Rights, Ryan Hickey

Public Land & Resources Law Review

Isaac Stevens, then Superintendent of Indian Affairs and Governor of Washington Territory, negotiated a series of treaties with Indian tribes in the Pacific Northwest during 1854 and 1855. A century and a half later in 2001, the United States joined 21 Indian tribes in filing a Request for Determination in the United States District Court for the District of Washington. Plaintiffs alleged the State of Washington had violated those 150-year-old treaties, which remained in effect, by building and maintaining culverts under roads that prevented salmon passage. This litigation eventually reached the Ninth Circuit Court of Appeals, which held in favor …

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Collaboration Through Nepa: Achieving A Social License To Operate On Federal Public Lands, Temple Stoellinger, L. Steven Smutko, Jessica M. Western Oct 2018

Collaboration Through Nepa: Achieving A Social License To Operate On Federal Public Lands, Temple Stoellinger, L. Steven Smutko, Jessica M. Western

Public Land & Resources Law Review

As demand and consumption of natural gas increases, so will drilling operations to extract the natural gas on federal public lands. Fueled by the shale gas revolution, natural gas drilling operations are now frequently taking place, not only in the highly documented urban settings, but also on federal public lands with high conservation value. The phenomenon of increased drilling in sensitive locations, both urban and remote, has sparked increased public opposition, requiring oil and gas producers to reconsider how they engage the public. Oil and gas producers have increasingly deployed the concept of a social license to operate to gain …

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Public-Private Conservation Agreements And The Greater Sage-Grouse, Justin R. Pidot Oct 2018

Public-Private Conservation Agreements And The Greater Sage-Grouse, Justin R. Pidot

Public Land & Resources Law Review

In 2015, the Obama Administration announced its conservation plans for the greater sage-grouse, an iconic bird of the intermountain west.Political leadership at the time described those plans as the “largest landscape-level conservation effort in U.S. history,”and they served as the foundation for a decision by the U.S. Fish and Wildlife Service (“FWS”) that a listing of the bird was not warranted under the Endangered Species Act (“ESA”). The Trump Administration appears poised to substantially amend the plans, although an array of interested parties have urged that the plans be left intact. Regardless of the outcome of this debate, conservation of …

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Streamlining The Production Of Clean Energy: Proposals To Reform The Hydroelectricity Licensing Process, Travis Kavulla, Laura Farkas Oct 2018

Streamlining The Production Of Clean Energy: Proposals To Reform The Hydroelectricity Licensing Process, Travis Kavulla, Laura Farkas

Public Land & Resources Law Review

Hydroelectric power is an efficient and clean source of power. In an era when air emissions dominate public concern about the environmental effects of the energy sector, it is a paradox that among the most highly regulated energy projects are hydroelectric dams, which do not combust fuel. This is partly due to a failure of successive statutory enactments,which have transformed hydroelectric licensing from a regulatory “one-stop shop” with a single regulator, to a process chained to a bewilderingnumber of often conflicting regulatory agencies, often riven with delay. Hydroelectric licensing has also failed because its capacious standard of review encourages special-interest …

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Keeping Power In Charge: Federal Hydropower And The Downstream Environment, Reed D. Benson Oct 2018

Keeping Power In Charge: Federal Hydropower And The Downstream Environment, Reed D. Benson

Public Land & Resources Law Review

No abstract provided.

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Language Matters: Environmental Controversy And The Quest For Common Ground, Scott Slovic Oct 2018

Language Matters: Environmental Controversy And The Quest For Common Ground, Scott Slovic

Public Land & Resources Law Review

No abstract provided.

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Center For Biological Diversity V. Zinke, Ryan Hickey Oct 2018

Center For Biological Diversity V. Zinke, Ryan Hickey

Public Land & Resources Law Review

The oft-cited “arbitrary and capricious” standard revived the Center for Biological Diversity’s most recent legal challenge in its decades-long quest to see arctic grayling listed under the Endangered Species Act. While this Ninth Circuit decision did not grant grayling ESA protections, it did require the United States Fish and Wildlife Service to reconsider its 2014 finding that listing grayling as threatened or endangered was unwarranted. In doing so, the court found “range,” as used in the ESA, vague while endorsing the FWS’s 2014 clarification of that term. Finally, this holding identified specific shortcomings of the challenged FWS finding, highlighting how …

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Friends Of Animals V. United States Fish & Wildlife Service, Bradley E. Tinker Oct 2018

Friends Of Animals V. United States Fish & Wildlife Service, Bradley E. Tinker

Public Land & Resources Law Review

In Friends of Animals v. United States Fish & Wildlife Service, the Ninth Circuit held that the plain language of the Migratory Bird Treaty Act allows for the removal of one species of bird to benefit another species. Friends of Animals argued that the Service’s experiment permitting the taking of one species––the barred owl––to advance the conservation of a different species––the northern spotted owl––violated the Migratory Bird Treaty Act. The court, however, found that the Act delegates broad implementing discretion to the Secretary of the Interior, and neither the Act nor the underlying international conventions limit the taking of …

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Public Employees For Environmental Responsibility V. United States Epa, F. Aaron Rains Oct 2018

Public Employees For Environmental Responsibility V. United States Epa, F. Aaron Rains

Public Land & Resources Law Review

Prior to 2016, the EPA acknowledged that human activities significantly contribute to climate change. However, on March 9, 2017, EPA Administrator Scott Pruitt announced that significant debate regarding the issue remained in the scientific community. In response to these statements, a nonprofit organization filed a FOIA request with the EPA seeking any documents or records Pruitt may have used when formulating his statements or substantiating his position. The EPA refused to comply with the request, citing undue burden and improper interrogation and this action followed. Upon review, the District Court for the District of Columbia found the plaintiff’s FOIA request …

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Agency Pragmatism In Addressing Law’S Failure: The Curious Case Of Federal “Deemed Approvals” Of Tribal-State Gaming Compacts, Kevin K. Washburn Oct 2018

Agency Pragmatism In Addressing Law’S Failure: The Curious Case Of Federal “Deemed Approvals” Of Tribal-State Gaming Compacts, Kevin K. Washburn

University of Michigan Journal of Law Reform

In the Indian Gaming Regulatory Act of 1988 (IGRA), Congress imposed a decision-forcing mechanism on the Secretary of the Interior related to tribal-state compacts for Indian gaming. Congress authorized the Secretary to review such compacts and approve or disapprove each compact within forty-five days of submission. Under an unusual provision of law, however, if the Secretary fails to act within forty-five days, the compact is “deemed approved” by operation of law but only to the extent that it is lawful. In a curious development, this regime has been used in a different manner than Congress intended. Since the United States …

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Rent-A-Tribe: Tribal Immunity To Shield Patents From Administrative Review, Seth W.R. Brickey Oct 2018

Rent-A-Tribe: Tribal Immunity To Shield Patents From Administrative Review, Seth W.R. Brickey

Washington Law Review

In 2017, Allergan Pharmaceuticals entered into an agreement with the Saint Regis Mohawk Tribe (SRMT). Allergan agreed to assign several patents to SRMT and to pay an initial sum of $13.75 million and annual royalties of approximately $15 million. SRMT, in exchange, licensed the rights to use the patents back to Allergan and agreed not to waive its tribal immunity in any administrative proceeding challenging the patents. Two outcomes were expected as a result of this Allergan-Mohawk agreement. First, Allergan would retain the rights to manufacture and market a highly profitable drug while insulating the underlying patents from an unforgiving …

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Report From The Royalty Policy Committee: The Past, Present, And Future Of The Royalty Policy Committee, Monte Mills Oct 2018

Report From The Royalty Policy Committee: The Past, Present, And Future Of The Royalty Policy Committee, Monte Mills

Faculty Books & Book Chapters

This report was Prepared for the Rocky Mountain Mineral Law Foundation Special Institute on Federal and Indian Oil & Gas Royalty Valuation and Management: Panel: Report from the Royalty Policy Committee October 24, 2018 ~ Houston, Texas

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Canada's Residential Schools And The Right To Integrity, Amy Anderson, Dallas K. Miller, Dwight Newman Oct 2018

Canada's Residential Schools And The Right To Integrity, Amy Anderson, Dallas K. Miller, Dwight Newman

Dalhousie Law Journal

Apart from characterizations of the residential schools system as imposing cultural genocide, it is possible to understand the system in terms of a legal wrong involving violations of family integrity. The 19th and early 20th centuries saw increasing state intervention in families generally so as to impose compulsory education. However, wrongs in this intervention were recognized, and international law developed toward a right of family integrity that led to changes in non-Indigenous contexts. Evidence from the TRC shows that Canada did not respond as quickly in the Indigenous context, thus permitting an identification of how the residential schools system violated …

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The Constitutionality Of Classification: Indigenous Overrepresentation And Security Policy In Canadian Federal Penitentiaries, D'Arcy Leitch Oct 2018

The Constitutionality Of Classification: Indigenous Overrepresentation And Security Policy In Canadian Federal Penitentiaries, D'Arcy Leitch

Dalhousie Law Journal

This article examines one component of the Correctional Service of Canada's (CSC) risk classification scheme. The CSC uses the Custody Rating Scale (CRS), a 12-item actuarial instrument, to measure risk and to provide security classification recommendations. Empirical data shows that while CRS recommendations may have some predictive validity, certain of the 12 items the CRS includes do not, particularly for Indigenous prisoners. This article makes the case that the inclusion ofsuch items in the CRS violates prisoner's rights under section 7 of the Charter by depriving them of liberty in a manner that is arbitrary and overbroad. Habeas corpus is …

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The Impact Of The Honour Of The Crown On The Ethical Obligations Of Government Lawyers: A Duty Of Honourable Dealing, Andrew Flavelle Martin, Candice Telfer Oct 2018

The Impact Of The Honour Of The Crown On The Ethical Obligations Of Government Lawyers: A Duty Of Honourable Dealing, Andrew Flavelle Martin, Candice Telfer

Dalhousie Law Journal

The honour of the Crown is recognized as a Canadian constitutional principle that is essential to reconciliation between Indigenous and non-Indigenous Canadians. As part of the process of reconciliation, this article argues that the honour of the Crown imposes a special ethical obligation on government lawyers in specific circumstances, which we call the duty of honourable dealing. We situate this duty in the divided literature and case law about whether government lawyers have special ethical obligations and in the two dimensions in which the honour of the Crown applies: the Crown as an institution and the Crown as a collection …

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Upper Skagit Indian Tribe V. Lundgren, Brett Berntsen Sep 2018

Upper Skagit Indian Tribe V. Lundgren, Brett Berntsen

Public Land & Resources Law Review

Stemming from a property dispute between a private landowner and the Upper Skagit Indian Tribe, this action evolved into a debate concerning the scope of tribal sovereign immunity and whether Indian tribes should be bound by certain common law doctrines applicable to most other sovereigns. The Washington Supreme Court originally ruled against the Tribe, citing County of Yakima v. Confederated Tribes and Bands of Yakima Nation in holding that sovereign immunity does not apply to in rem actions. The United States Supreme Court granted certiorari to clarify that its ruling in Yakima did not support such a proposition. The case …

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Tensions Underlying The Indian Child Welfare Act: Tribal Jurisdiction Over Traditional State Court Family Law Matters, Elizabeth Maclachlan Sep 2018

Tensions Underlying The Indian Child Welfare Act: Tribal Jurisdiction Over Traditional State Court Family Law Matters, Elizabeth Maclachlan

BYU Law Review

State courts have historically exercised jurisdiction over family law cases. However, under the Indian Child Welfare Act (ICWA), Indian child custody and adoption cases have been taken out of state jurisdiction and placed with Indian tribal governments. State courts have pushed back against proper deference to ICWA and violate ICWA by misapplying its provisions and refusing to transfer custody and adoption cases to tribal courts. This Note analyzes the state-tribal tensions surrounding ICWA and argues that the primary reason for the lack of full state acceptance of ICWA is that, historically, states have had nearly total jurisdiction over family law …

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Upstate Citizens For Equality, Inc. V. United States, Kirsa Shelkey Sep 2018

Upstate Citizens For Equality, Inc. V. United States, Kirsa Shelkey

Public Land & Resources Law Review

The Indian Reorganization Act of 1935 is the proper avenue for Tribes pursuing restoration of their historic trust lands. The Oneida Indian Nation of New York long sought to reassert tribal jurisdiction over its historic homeland in Central New York. These efforts were largely unsuccessful until 2008 when the United States took 13,000 acres of this historic homeland into trust on behalf of the Tribe under the Indian Reorganization Act. This case affirms the federal government’s plenary powers over Indian Tribes, and that neither state sovereignty principles, nor the Enclave Clause upset that authority.

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Tenth Anniversary Of The University Of Idaho's Native Law Program, Dylan R. Hedden-Nicely Sep 2018

Tenth Anniversary Of The University Of Idaho's Native Law Program, Dylan R. Hedden-Nicely

Articles

No abstract provided.

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Welcome From The Chair Of The Indian Law Section, Dylan R. Hedden-Nicely Sep 2018

Welcome From The Chair Of The Indian Law Section, Dylan R. Hedden-Nicely

Articles

No abstract provided.

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Current Developments In Indian Water Law And Treaty Rights: Old Promises, Recent Challenges, And The Potential For A New Future, Monte Mills Sep 2018

Current Developments In Indian Water Law And Treaty Rights: Old Promises, Recent Challenges, And The Potential For A New Future, Monte Mills

Faculty Books & Book Chapters

Chapter nine of 64 Rocky Mt. Min. L. Inst. 9-1 (2018).

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Intersectional Human Rights At Cedaw: Promises Transmissions And Impacts, Amanda Barbara Allen Dale Aug 2018

Intersectional Human Rights At Cedaw: Promises Transmissions And Impacts, Amanda Barbara Allen Dale

PhD Dissertations

Starting from the premise that international human rights law is not a neutral fact, this dissertation is a critical exploration of the promises, transmissions and impacts of intersectionality as an approach to gender protections in international human rights law. I begin with a definition of intersectionality at the individual claimant and jurisprudential levels, as an approach to anti-discrimination and equality law that attempts to move beyond static conceptions and fixed identities of discriminated subjects, and, based on Kimberl Crenshaws powerful metaphor of a traffic intersection, delineates the flow of discrimination as multi-directional, and injury as seldom attributable to a single …

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The Seminole Water Rights Compact And The Seminole Indian Land Claims Settlement Act Of 1987, Jim Shore, Jerry C. Straus Aug 2018

The Seminole Water Rights Compact And The Seminole Indian Land Claims Settlement Act Of 1987, Jim Shore, Jerry C. Straus

Florida State University Journal of Land Use and Environmental Law

No abstract provided.

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An Indian Site-Specific Religious Claim Again Trips Over Judeo-Christian Stumbling Blocks (Lyng V. Northwest Indian Cemetery Protective Association, 108 S. Ct. 1319 (1988))., Anita Clark Pryor, Gypsy Cowherd Bailey Aug 2018

An Indian Site-Specific Religious Claim Again Trips Over Judeo-Christian Stumbling Blocks (Lyng V. Northwest Indian Cemetery Protective Association, 108 S. Ct. 1319 (1988))., Anita Clark Pryor, Gypsy Cowherd Bailey

Florida State University Journal of Land Use and Environmental Law

No abstract provided.

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