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  • Little Justice for Native American Women Victimized by Non-Native Attackers

    By Ben Cornelius Associate Editor, Volume 23 In April of 2015, Edith Chavez, a Native American woman, was beaten and knocked unconscious at a North Dakota gas station by an unknown assailant.[1] She was then abducted, drugged, and driven northwest, likely to be sold into prostitution. Prostitution and human trafficking is thriving alongside the oil boom in the state.[2] Thankfully, Edith managed to escape her attacker and a good Samaritan took her to the police station in Williston, North Dakota to make a report.[3] Instead of taking a statement and launching an investigation, however, the police arrested Edith for an unpaid traffic ticket.[4] It was only after the intervention of a female officer at the jail Edith was transferred to that Edith was released and taken to a hospital.[5] Unfortunately, stories like Edith’s are not unique. According to former U.S. Associate Attorney General, Thomas Perrelli, on some reservations, Native American women are murdered at over 10 times the national average.[6] According to U.S. Justice Department records, one in three Native American women are raped during their lifetimes, two-and-a-half times the likelihood for an average non-Native American woman.[7] In 86 percent of these cases, the assailant is non-Indian.[8] The oil boom in the Dakotas has flooded the region with transient workers, many of whom prey on those vulnerable to rape and murder.[9] In addition to rape and murder, human trafficking has also skyrocketed.[10] Since the arrival of Europeans Native Americans have been prime targets for human traffickers, and in other cities that lie near reservations such as Minneapolis, native woman are grossly overrepresented in prostitution.[11] A 2007 review of probation records from North Minneapolis found that 24% of the women charged with prostitution in the area were Native American, yet Native Americans only comprised 2.2% of the population.[12]

  • American Indian Political Representation: An Update on Congressional Races Across America

    By Ben Cornelius Associate Editor, Volume 23   The highest achieving American Indian in U.S. politics was Kaw-Osage-Pottawatomie Charles Curtis. Curtis was the 31st Vice President of the United States serving with President Herbert Hoover.[1] Curtis started his career as a horse jockey, later attending law school, leading to his election to Congress. He eventually became a prominent member of the Republican party and was chosen as Hoover’s Vice-President.[2] Of the current 535 members of Congress, only two are members of federally recognized American Indian tribes. Tom Cole of the Chickasaw Nation is currently serving his 8th term as a Republican U.S. Representative for Oklahoma’s 4th District.[3] “Cole is an advocate for a strong national defense, a tireless advocate for taxpayers and small businesses and a leader on issues dealing with Native Americans and tribal governments.”[4] The other Ameircan Indian Congressman is Representative Markwayne Mullin, a Cherokee Republican representing Oklahoma’s 2nd Congressional District. Mullin is a businessman and a former professional Mixed Martial Arts fighter with a 3-0 record.[5] Given the dire circumstances on many reservations, increased Native American political representation is vital for the future of Indian Country. American Indians have a 28.3% poverty rate, compared to 15.5% for the nation as whole.[6] Lack of access to quality health care has led to huge disparities in health, for example the post neonatal death rate is over twice that of the U.S. white rate, 4.8 deaths per 1000 live births versus 2.2.[7]  Education is another roadblock, as only 67% of American Indian students graduate from high school, compared to the national average of 80%.[8] Indian issues typically receive little attention in mainstream political dialogue. If there is any attention, it usually involves hostility to Tribal business ventures,[9] business that are vital to many tribes ability to support themselves and provide for tribal members.

  • “Why Should I Go Vote Without Understanding What I Am Going to Vote For?” The Impact of First Generation Voting Barriers on Alaska Natives

    This article explores the many forms of discrimination that have persisted in Alaska, the resulting first generation voting barriers faced by Alaska Native voters, and the two contested lawsuits it took to attain a measure of equality for those voters in four regions of Alaska: Nick v. Bethel and Toyukak v. Treadwell. In the end, the court’s decision in Toyukak came down to a comparison of just two pieces of evidence: (1) the Official Election Pamphlet that English-speaking voters received that was often more than 100 pages long; and (2) the single sheet of paper that Alaska Native language speakers received, containing only the date, time, and location of the election, along with a notice that they could request language assistance. Those two pieces of evidence, when set side by side, showed the fundamental unequal access to the ballot. The lessons learned from Nick and Toyukak detailed below are similarly simple: (1) first generation voting barriers still exist in the United States; and (2) Section 203 of the VRA does not permit American Indian and Alaska Native language speaking voters to receive less information than their English-speaking counterparts. The voters in these cases had been entitled to equality for 40 years, but they had to fight for nearly a decade in two federal court cases to get it.

  • Legacy in Paradise: Analyzing the Obama Administration’s Efforts of Reconciliation with Native Hawaiians

    This Article analyzes President Barack Obama’s legacy for an indigenous people—nearly 125 years in the making—and how that legacy is now in considerable jeopardy with the election of Donald J. Trump. This Article is the first to specifically critique the hallmark of Obama’s reconciliatory legacy for Native Hawaiians: an administrative rule that establishes a process in which the United States would reestablish a government-to-government relationship with Native Hawaiians, the only indigenous people in America without a path toward federal recognition. In the Article, Obama’s rule—an attempt to provide Native Hawaiians with recognition and greater control over their own affairs to counter their negative socio-economic status—is analyzed within the historical and political context of a government coy to live up to its reconciliatory promises. The Article analyzes past attempts to establish a government-to-government relationship and considers new avenues for reaching this end. The Article concludes that although the rule brings the federal government closer to its ideals of justice, it does not go far enough to engender true social healing, specifically because of the uncertainty that the rule will be followed by a conservative Trump Administration that will likely be hostile toward Native Hawaiians and other indigenous communities.

  • The Indian Child Welfare Act and the Battle over Lexi

    By Laura Page Associate Editor, Vol. 22 After more than two years of protracted litigation and aggressive media coverage, the family at the center of a challenge to the Indian Child Welfare Act (ICWA) filed a petition for Supreme Court certiorari last month.  The Pages, former foster parents…

  • The Standing Rock Sioux and Dakota Access Pipeline: Just the Beginning

    By Laura Page Associate Editor, Vol. 22 After months of protests, the Standing Rock Sioux Tribe recently celebrated a minor victory, with the U.S. Court of Appeals for the D.C. Circuit granting a temporary injunction of the construction of the Dakota Access Pipeline (DAPL).  In its decision, the…

  • Disparaging Trademarks: Who Matters

    For more than a century, non-majority groups have protested the use of trademarks comprised of or containing terms referencing the group—albeit for various reasons. Under the 1946 Lanham Act, Congress added a prohibition against registering disparaging trademarks, which could offer protection to non-majority groups targeted by the use of trademarks offensive to members of the group. The prohibition remained relatively unclear, however, and rarely applied in that context until a group of Native Americans petitioned to cancel the Washington NFL team’s trademarks as either scandalous, offensive to the general population, or disparaging, offensive to the referenced group. In clarifying the appropriate test for disparaging, however, the decision makers have overly analogizing the two prohibitions, rendering the disparaging trademark prohibition less effective in protecting non-majority groups from offensive trademarks.

  • Attorneys for Native Americans Ask Federal Judge to Dismiss Washington R*dskins’ Lawsuit

    By Whitney Robinson, Associate Editor Vol. 20 On Friday, October 31, lawyers for the five Native American tribes fighting the Washington R*dskins over the team’s name and trademark protections asked a federal judge in Alexandria, VA to dismiss the team’s lawsuit against them. According to the attorneys for the Native…

  • Protecting Intangible Cultural Resources: Alternatives to Intellectual Property 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 Archeological Resources Protection Act of 1979 and the Native American Graves Protection and Repatriation Act, 1990 (NAGPRA). The protection of intangible cultural resources, however, is less codified. The provision of legal protection for intangible cultural resources has focused almost entirely on either linking such protection to human rights or defining intangible culture as intellectual property (IP). Early work on defining intangible cultural resources as IP was conducted jointly by UNESCO and the World Intellectual Property Organization (WIPO), which led to the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (1985). Work by WIPO continues today through its Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. This is complemented by a growing body of law, mostly in other countries, using property law to halt cultural appropriation from indigenous communities. However, as it stands, IP law, in general, may be a poor fit for tribes. This Comment explores alternatives that exist in the form of regulation of research and tort actions against researchers who violate these regulations. It is premised on the observation that one of the primary means by which culture has been appropriated from American Indian communities has been through social scientific research. Indians are among the most heavily studied groups in fields like medicine, public health, and, recently, genetics. Yet anthropology, more than any other discipline, has made American Indians the subjects of research.

  • The Right to Counsel for Indians Accused of Crime: A Tribal and Congressional Imperative

    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 presents for Indians and tribal sovereignty. While an Indian has the right to defense counsel in federal criminal court proceedings, he does not in tribal court. This distinction makes a grave difference for access to justice for Americans Indians not only in tribal court, but also in state and federal courts. The Article provides in-depth analysis, background, and context necessary to understand the right to counsel under the ICRA and the U.S. Constitution. Addressing serious civil rights violations that negatively impact individual Indians and a tribe's right to formulate due process, this Article ultimately supports an unqualified right to defense counsel in tribal courts. Defense counsel is an indispensable element of the adversary system without which justice would not "still be done." Tribes, however, were forced to embrace a splintered system of justice that required the adversary system but prohibited an adequate defense. The legacy of colonialism and the imposition of this fractured adversary system has had a devastating impact on the formation of tribal courts. This legacy requires tribal and congressional leaders to rethink the issue of defense counsel to ensure justice and fairness in tribal courts today. The Article concludes that tribes should endeavor to provide counsel to all indigent defendants appearing in tribal courts and calls upon Congress to fund the provision of counsel to reverse the legacy of colonialism and avoid serious human rights abuses.