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Indian Child Welfare Act Annual Case Law Update And Commentary, Kathryn Fort, Adrian T. Smith

American Indian Law Journal

Annually there is an average of 200 appellate cases dealing with the Indian Child Welfare Act (ICWA) —though this includes published and unpublished opinions.[1] Since our first annual review of the case law in 2017, the numbers remain stable. There are approximately thirty reported state appellate court cases involving ICWA each year. This annual review is the only systematic look at the ICWA cases on appeal, including an analysis of who is appealing, what the primary issues are on appeal, and what topical trends are.

This article provides a comprehensive catalogue of published ICWA cases from across all fifty …

Mapping A Way Through Disaster And Emergency Issues Involving Indian Country And The Importance Of Legal Preparedness, Brian T. Candelaria

American Indian Law Journal

No abstract provided.

Out With The New, In With The Old: Re-Implementing Traditional Forms Of Justice In Indian Country, Nicholas R. Sanchez

American Indian Law Journal

No abstract provided.

P2p Lending Can Increase Capital To Capitally Starved Indian Country, Craig Nichols

American Indian Law Journal

No abstract provided.

Amicus Memoriais, Jocelyn Getgen Kestenbaum, Cardozo Human Rights & Atrocity Prevention Clinic

Amicus Briefs

Professor Jocelyn Getgen Kestenbaum and the Human Rights and Atrocity Prevention Clinic submitted an amicus brief in the Brazilian Supreme Court for a landmark ruling for the Xokleng people.

Conceptualizing Global Indigenous Rights, Kerri J. Malloy

Faculty Research, Scholarly, and Creative Activity

No abstract provided.

Book Review: Flawed Precedent: The St. Catherine’S Case And Aboriginal Title, F. Tim Knight

Librarian Publications & Presentations

No abstract provided.

The Violence Against Women's Act: From The Criminalization Of Domestic Violence Through Modern Political Challenges, Carrie Anderson

Theses/Capstones/Creative Projects

The Violence Against Women’s Act, or VAWA, is a landmark piece of federal legislation to combat domestic violence in the United States. It passed in 1994 following various state efforts to stop intimate partner violence. Broad federal legislation was needed to end domestic violence because of the unique nature of the crime including the strong connection between victims and perpetrators, the vast scale of the problem, and the reoccurring nature of domestic violence (Fagan, p. 28-29, 1996). VAWA has been expanded through reauthorization efforts in 2000, 2005, and 2013. Reform efforts have focused on increasing protections for victims especially focusing …

Fraying The Knot: Marital Property, Probate, And Practical Problems With Tribal Marriage Bans, Suzianne D. Painter-Thorne

Brooklyn Law Review

While marriage equality is thought to be the law of the land, that is not necessarily true for members of nearly a dozen Indian tribes that continue to prohibit same-sex marriage. Whether a tribe permits same-sex marriage rests on the tribes’ inherent authority to govern their own internal affairs. Acting pursuant to that inherent authority, many tribes were leaders on the issue of marriage equality, legalizing same-sex marriage when most states prohibited such marriages. Other tribes, however, like the Navajo Nation, limit marriages to “one man and one woman.” As a consequence, a married Indian couple may have their marriage …

Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla

Public Land & Resources Law Review

In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction over …

Juliana V. United States, Anthony Reed

Public Land & Resources Law Review

Plaintiffs sued the United States government for promoting activities that were known to pollute the atmosphere and cause climate change. They claimed the government’s policies violated their rights under the substantive due process clause of the Fifth Amendment, the equal protection clause of the Ninth Amendment, and the public trust doctrine. The Ninth Circuit held it was not within the court’s Article III power to create and oversee a comprehensive plan capable of redressing the Plaintiffs’ injuries and, therefore, Plaintiffs lacked standing.

The Convention For The Safeguarding Of The Intangible Cultural Heritage (Csich) And The Control Of Indigenous Culture: A Critical Comment On Power And Indigenous Rights, Jonathan Liljeblad

William & Mary Journal of Race, Gender, and Social Justice

The Preamble of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (CSICH) recognizes the connection between indigenous peoples and intangible cultural heritage. The convention indicates that part of its mission is to protect the intangible cultural heritage of indigenous peoples against the processes of globalization and social transformation. The convention, however, has been critiqued for the manner in which it attempts to manage intangible cultural heritage, with critics charging that the convention fosters a power structure that favors states and thereby threatens to marginalize indigenous peoples from control over their own cultures. Such criticism raises a question …

Changing Consultation, Elizabeth Kronk Warner, Kathy Lynn, Kyle Whyte

Utah Law Faculty Scholarship

As climate change and fossil fuel extractive industries ravage Indian country and burden many Indigenous communities with risks, the negative impacts on tribal sovereignty, health, and cultural resources demand consultation between tribes and the federal government. Yet, this is an area where the law fails to provide adequate guidance to parties who should be engaging or are already engaging in tribal consultations. The law, both domestic and international, may require that consultation occurs, but leaves parties to determine themselves what constitutes effective and efficient consultation. The legacy of the law’s inability to provide effective guidance has generated a litany of …

Indigenous Communities Versus Oil Companies: Identifying Trends In Tactics And Success Of Indigenous-Led Anti-Petroleum Movements In The Ecuadorian Amazon, Ella V. H. Carlson

Independent Study Project (ISP) Collection

In roughly the last 50 years, the Ecuadorian Amazon has become the epicenter of petroleum production in Ecuador. As oil companies attempt to exploit more and more of the rainforest, they have encroached on indigenous lands, leading to violations of indigenous rights through environmental destruction. As their territories have been invaded, indigenous groups throughout the Amazon have formed movements large and small in resistance to petroleum activities. Scholars have studied select campaigns in the past, but the literature lacks a comparative review of the characteristics of those movements. This paper compiles histories of seven campaigns against petroleum in the Ecuadorian …

Taxes, Theft, And Indian Tribes: Seeking An Equitable Solution To State Taxation Of Indian Country Commerce, Adam Crepelle

West Virginia Law Review

No abstract provided.

Fraying The Knot: Marital Property, Probate, And Practical Problems With Tribal Bans, Suzianne D. Painter-Thorne

Articles

In the summer of 2015, marriage equality advocates celebrated the Supreme Court’s decision in Obergefell v. Hodges, which struck down state prohibitions on same-sex marriage.The Court found that “[t]he right of same-sex couples to marry . . . is part of the liberty promised by the Fourteenth Amendment.” Two years earlier, the Court had struck down parts of the federal Defense of Marriage Act (DOMA), finding that the federal government could not discriminate against same-sex married partners. With these two decisions, the Court ensured that the marriages of same-sex couples would be recognized by the federal government and in …

The Indigenous Decade In Review, Christine Zuni Cruz

SMU Law Review Forum

This Article considers the decade, 2010 to 2019, in respect to indigenous peoples in the United States. The degree of invisibility of indigenous peoples, in spite of the existence of 574 federally recognized tribes with political status, is a central issue in major cases and events of the decade. Land and environment, social concerns, and collective identity are the three areas through which this Article considers the decade. The Declaration on the Rights of Indigenous Peoples, endorsed in 2010, sets a measure for the nation-state’s engagement with indigenous peoples possessed of self-determination. The criticality of a new place in the …

Synthesis Report: Implementing A Regional, Indigenous-Led And Sustainability-Informed Impact Assessment In Ontario’S Ring Of Fire, Dayna N. Scott, Cole Atlin, Estair Van Wagner, Peter Siebenmorgan, Robert B. Gibson

Articles & Book Chapters

Background: the issue

Development in Ontario’s “Ring of Fire”, a significant deposit of minerals, including chromite, located in the boreal region of the far north of the province, has been on the table for many years. Despite the fact that successive governments have hyped the value of the resources, the remoteness and lack of infrastructure, as well as the inability of governments to obtain the buy-in of all of the First Nations communities in the region, has left the Ring of Fire undeveloped.

Thus, Ontario’s far north remains one of the world’s largest, most intact ecological systems. The boreal forest …

Extraction Contracting: The Struggle For Control Of Indigenous Lands, Dayna N. Scott

Articles & Book Chapters

No abstract provided.

Tax Burdens And Tribal Sovereignty: The Prohibition On Lavish And Extravagant Benefits Under The Tribal General Welfare Exclusion, Pippa Browde

Faculty Law Review Articles

This article examines a portion of a relatively new federal tax statute, the Tribal General Welfare Exclusion (TGWE), that allows qualified individuals an exclusion from gross income for payments received from American Indian/Alaska Native tribes for any "Indian general welfare benefit." Indian general welfare benefits are payments made to tribal members by the tribe pursuant to an Indian tribal government program for the promotion of general welfare, such as for health, education, or housing. The TGWE is intended, in part, to promote participation in American Indian tribal cultural and ceremonial practices. To that end, Indian general welfare benefits include payments …