ILJ Winter Call For Submissions – Deadline January 5, 2016
Scholarship
Jasmine Abdel-Khalik on Disparaging Trademarks
Jasmine Abdel-Khalik has posted “Disparaging Trademarks: Who Matters,” published in the Michigan Journal of Race & Law. Here is the abstract:
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. For those trademarks that are offensive to targeted groups, some may argue that the market will solve. In other words, some may assume that purchasers in the marketplace will respect the objection, there will be insufficient purchases of the product under the mark, and the mark will disappear. However, objections raised by smaller populations in the United States often fall on deaf ears, and the marks continue to be used in the marketplace. The Washington NFL football team trademarks are an example.
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 relatively rarely applied in that context until a group of Native Americans petitioned to cancel the Washington NFL team’s trademarks as either scandalous (meaning offensive to the general population) or disparaging (meaning 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 registration prohibition less effective in protecting non-majority groups from offensive trademarks.
This Article seeks to clarify the history, purpose, and utilization of the disparaging registration prohibition. In so doing, the Article also seeks to detangle the scandalous and disparaging registration prohibitions and refocus the disparaging registration prohibition on a broader and necessary purpose, which is to protect non-majority voices from the numerous harms caused by stereotyping and by rendering painful terms commonplace but no less painful.
Rebecca Webster on Service Agreement Payment Formulas for Tribal Trust Lands on the Oneida Reservation
Rebecca M. Webster has published “Service Agreements: Exploring Payment Formulas for Tribal Trust Lands on the Oneida Reservation” in the American Indian Quarterly.
Here is the abstract:
Many tribal governments throughout the US struggle with developing and maintaining positive relationships with other governments that have overlapping boundaries. Sometimes a tribe and other governments are able to strike an accord and realize a wide array of ways their respective governments can complement each other in order to provide the best services to their shared communities. Other times tribal and local governments find themselves tied up in litigation and negative public relations campaigns due to their inability to find a way to peacefully coexist. The Oneida Reservation has a unique history leading to checkerboard landownership patterns and the presence of tribal and local governments providing varying levels of government services. With respect to tribal trust land, the Oneida Tribe and local governments have been working together for the past two decades to find equitable ways to recognize each other’s government services through service agreements.
Reception for Release of Native Hawaiian Law: A Treatise
Bob Miller on the United States Duty to Confer with American Indian Governments
Robert Miller has posted his paper, “Consultation or Consent: The United States Duty to Confer with American Indian Governments,” forthcoming in the North Dakota Law Review. Here is the abstract:
This article explores the current international law movement to require nation/states to consult with Indigenous peoples before undertaking actions that impact Indigenous nations and communities. The United Nations took a significant step in this area of law in September 2007 when the General Assembly adopted the Declaration on the Rights of Indigenous Peoples. The Declaration contains many provisions requiring states to confer and consult with Indigenous peoples, and in many instances to obtain their “free, prior and informed consent.” This article undertakes an original and detailed investigation into how the free, prior and informed consent standard emerged in the drafting of the Declaration.
But the article also points out that consultations and obtaining the consent of Indigenous peoples is nothing new in the political and diplomatic relations between American Indian nations and the United States. From the very founding of the U.S., it has maintained a government-to-government relationship with Indian tribes. This relationship is expressly recognized in the U.S. Constitution, and is reflected in hundreds of U.S./Indian treaties and in the history of the interactions between these governments. A nearly constant stream of formal and informal consultations and diplomatic dealings has marked this relationship.
In recent decades, though, the international community has begun focusing on consultations with Indigenous peoples and has increased the international law obligation on states to consult. The international regime is also moving far beyond mere consultations and is requiring states to obtain the free, prior and informed consent of Indigenous peoples. On the surface, requiring the United States to obtain the informed consent of Indian nations and peoples, before undertaking actions that affect them, might be more onerous than just consulting with tribal governments.
This article examines the history and modern-day processes for United States consultations with Indian nations and the emerging international law standard of free, prior and informed consent. The article argues that the United States should continue and even enhance the consent paradigm that has always been the goal of federal/tribal relations. And, the article also argues that the United States should have little trouble adapting to the new international law consent movement.
Grant Christensen on Recent SCOTUS Decisions on Personal Jurisdiction and Tribal Courts
Grant Christensen has posted “Personal Jurisdiction and Tribal Courts after Walden and Bauman: The Inadvertent Impact of Supreme Court Jurisdictional Decisions on Indian Country.”
Here is the abstract:
In 2014 the United States Supreme Court added two new cases to the canon on the meaning of due process in the context of personal jurisdiction. These cases clarified the metes and bounds of specific and general personal jurisdiction. However, decisions that fit within the state and federal court system do not always easily have cross applications to tribal courts – which nonetheless are obliged to extend due process rights via the Indian Civil Rights Act. This article takes the Supreme Court’s 2014 decisions and discusses their potential application to tribal courts and their use within Indian Country.
Oklahoma Bar’s Indian Law Section CLE Event
Oklahoma City University School of Law is hosting a full day CLE event on the legal power of Indian Tribes.
Announcement (PDF) here.
John Ragsdale on the Huron Indian Cemetery
John W. Ragsdale has posted his paper, “Sacred in the City: The Huron Indian Cemetery and the Preservation Laws,” on SSRN. Here is the abstract:
The Huron Indian Cemetery sits on a hill above the confluence of the Missouri and Kansas Rivers. It is several acres of predominant green, with grass, mature trees, and modest, weathered grave stones, surrounded by the sterile concrete of a struggling Midwestern city. Desultory businesses, colorless governmental offices, a casino, and strong evidence of poverty and vandalism lap at the shores of the small sanctuary. Yet despite the drab and essential joylessness of the encircling faded modernity, the cemetery holds a surprising sense of peace and even timelessness. The serenity may seem incongruous, not only because of the tawdry surroundings, but also because of the cemetery’s chaotic history as a center of numerous legal and economic conflicts. This article will focus on the story of endurance and on the reciprocating feelings inspired by and invested in this unique burial place. It will deal with the general, perhaps inevitable, tension between the sacred and the profane – the clash between the emotion, solemnity, and repose of a spiritual site, the transformative calculations of economic and political expediency and the law that may bridge that gap.
New Scholarship by Rebecca Tsosie on Cultural Production
Rebecca Tsosie has published Just Governance or Just War?: Native Artists, Cultural
Production, and the Challenge of “Super-Diversity” in Cybaris an Intellectual Property Law Review.
An excerpt:
Many, if not most, non-Indians fail to understand the significance of cultural identity to Indigenous peoples, nor do they understand the concept of cultural harm. Consequently, the battle over cultural appropriation continues as Dan Snyder, owner of the Washington team, proclaims that the “Redskins” logo and team name actually honors Indians, ignoring the protests of Native leaders and tribal members who assert that the mascot disparages and degrades them. The battle continues over sacred symbols as pop music giant Pharrell Williams and countless other celebrities wear garish “war bonnets” in a caricature of the ceremonial headdress that is culturally authorized for use only by esteemed and worthy tribal leaders from the Indigenous nations of the Southern and Northern Plains. But is this really a desecration or is it a permissible act of artistic appropriation? If there is no legal right to stop these appropriations, why should it matter? Perhaps most vexing of all, it seems to outsiders that not “all Indians” agree on the terms of the debate. Team owner Dan Snyder pointed this out as he hosted his VIP guests, then-Navajo Nation President Ben Shelly and First Lady Martha Shelly, during a 2014 football game in Glendale, Arizona, all wearing hats with the infamous Washington Team logo.
It’s always a good day when a new article by Professor Tsosie arrives.
New Student Scholarship on Understanding Tribal Courts and the Application of Fundamental Law
April Wilkinson has posted “A Framework for Understanding Tribal Courts and the Application of Fundamental Law: Through the Voices of Scholars in the Field of Tribal Justice,” forthcoming in the Tribal Law Journal, on SSRN.
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