| Author | Title | Citation | Summary | Year |
| Wendy Lewis |
The Role of Domicile in Adopting Indian Children: Mississippi Band of Choctaw Indians V. Holyfield |
1990 Utah Law Review 899 (1990) |
Congress enacted The Indian Child Welfare Act (ICWA) in 1978 in response to a growing concern over the number of Indian children removed from reservations and placed for adoption or foster care in non-Indian homes. The ICWA grants exclusive jurisdiction to tribal courts in all child custody cases in which the child resides or is domiciled on a... |
1990 |
| Ellen Adair Page |
The Scope of the Free Exercise Clause: Lyng V. Northwest Indian Cemetery Protective Association |
68 North Carolina Law Review 410 (January, 1990) |
The free exercise clause of the first amendment provides that Congress shall make no law . . . prohibiting the free exercise of religion.' This provision offers one of the most fundamental protections of freedom: a shield from religious persecution. The scope of that protection, however, has been the subject of frequent debate among scholars, and... |
1990 |
| Jim Shore, Jerry C. Straus |
The Seminole Water Rights Compact and the Seminole Indian Land Claims Settlement Act of 1987 |
6 Journal of Land Use & Environmental Law L. 1 (Winter, 1990) |
Under the doctrine set forth in Winters v. United States, American Indians have unique rights to use the waters that arise on, border, traverse, or are encompassed within their reservations. Controversies have developed in western states, where many reservations are located, concerning the precise nature and extent of Indian water rights.... |
1990 |
| Eric Smith , Mary Kancewick |
The Tribal Status of Alaska Natives |
61 University of Colorado Law Review 455 (1990) |
Eskimos, Aleuts, and Indians have lived in Alaska since time immemorial. Prior to contact with western culture, they, like their relatives in the lower 48 and Canada, comprised a set of distinct cultures each with its own territory and its own distinctive form of social organization. The legal term for such groups of indigenous peoples is tribes.... |
1990 |
| Eric Smith , Mary Kancewick |
THE TRIBAL STATUS OF ALASKA NATIVES |
61 University of Colorado Law Review 455 (1990) |
Eskimos, Aleuts, and Indians have lived in Alaska since time immemorial. Prior to contact with western culture, they, like their relatives in the lower 48 and Canada, comprised a set of distinct cultures each with its own territory and its own distinctive form of social organization. The legal term for such groups of indigenous peoples is tribes.... |
1990 |
| Gerald Torres , Kathryn Milun |
Translating Yonnondio by Precedent and Evidence: the Mashpee Indian Case |
1990 Duke Law Journal 625 (September, 1990) |
A song, a poem of itselfthe word itself a dirge, Amid the wilds, the rocks, the storm and wintry night, To me such misty, strange tableaux the syllables calling up . . . . Walt Whitman, Yonnondio As part of the sacred text, the landlike sacred texts in other traditionsis not primarily a book of answers, but rather a principal symbol of,... |
1990 |
| Lynnette J. Boomgaarden |
Water Law--quantification of Federal Reserved Indian Water Rights-- "Practicably Irrigable Acreage" under Fire: the Search for a Better Legal Standard. In re the General Adjudication of All Rights to Use Water in the Big Horn River System, 753 P.2d 76 (Wy |
25 Land and Water Law Review 417 (1990) |
An 1868 treaty established the Wind River Indian Reservation without an express reservation of water. The language of the Second Treaty of Fort Bridger described the Wind River Indian Reservation (Reservation) as an agricultural reservation, established for the broader purpose of providing the Indians with a permanent homeland. By 1905 the size... |
1990 |
| Kenneth D. Nelson |
Wisconsin, Walleye, and the Supreme Law of the Land: an Overview of the Chippewa Indian Treaty Rights in Northern Wisconsin |
11 Hamline Journal of Public Law and Policy 381 (Fall, 1990) |
Treaties are a part of the supreme law of the land. This comment discusses rights reserved by the Chippewa Indians in treaties made with the United States government during the 19th century and the current controversy surrounding those rights. Specifically, this comment focuses on the hunting, fishing, and gathering rights reserved in the treaties... |
1990 |
| Jo Carrillo |
Woodrow Borah, Justice by Insurance: the General Indian Court of Colonial Mexico and the Legal Aides of the Half-real Xi, 479 (1983) |
32 Arizona Law Review 361 (1990) |
In 1942, Felix Cohen noted in The Spanish Origin of Indian Rights in the Law of the United States that the underlying principles of Indian law had their source in sixteenth century Spanish juristic thought. Cohen's article, written when news of the Holocaust was emerging, suggested that a study of Spain's methods of governing the indigenous peoples... |
1990 |
| Leonard T. Strand |
Antitrust Law-noerr Immunity in the Private Standard-setting Context: Allied Tube & Conduit Corp. V. Indian Head, Inc. |
14 Journal of Corporation Law 1033 (Summer, 1989) |
Conduct otherwise subject to liability under the Sherman Act may be immunized by the Noerr doctrine. This doctrine, established by the United States Supreme Court in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., excludes from antitrust liability activities that comprise mere solicitation of governmental action with respect... |
1989 |
| Steven John Fellman, Daniel E. Durden |
Association Standard Setting after Indian Head |
4-WTR Antitrust 24 (Fall/Winter, 1989) |
The Noerr-Pennington doctrine granting immunity from antitrust liability to certain forms of government petitioning has been a cornerstone upon which almost every national standard setting organization has built its antitrust foundation. However, the Supreme Court's recent decision in Allied Tube & Conduit Corporation v. Indian Head, Inc., 108 S.... |
1989 |
| Mike Townsend |
Congressional Abrogation of Indian Treaties: Reevaluation and Reform |
98 Yale Law Journal 793 (February, 1989) |
We look at the moral or spiritual side of a treaty. . . . Treaties mean words that nobody can get around, get over, get under. Richard Real Bird, Chairman, Crow Tribe It is long settled that the provisions of an act of Congress, passed in the exercise of its constitutional authority, . . . if clear and explicit, must be upheld by the courts, even... |
1989 |
| Joani S. Harrison |
Constitutional Law--first Amenoment--government Action Does Not Violate Free Exercise Clause of First Amendment When it Neither Coerces Action Contrary to Religious Beliefs Nor Rrohibits Access to Practice Those Beliefs, but Merely Imposes an Incidental B |
20 Saint Mary's Law Journal 427 (1989) |
The United States Forest Service planned to construct a six mile paved roadway through Six Rivers National Forest connecting two California cities. This area had historically been used by American Indians for religious rituals that required undisturbed natural settings. Rejecting their own study which advised that the road not be completed, the... |
1989 |
| Mark A. Newcity |
Constitutional Law-limitations upon Protection Offered by the Free Exercise Clause-lyng V. Northwest Indian Cemetery Protective Association, 108 S. Ct. 1319 (1988) |
23 Suffolk University Law Review 126 (Spring, 1989) |
The free exercise clause of the first amendment prohibits the government from interfering with the free exercise of religion. In Lyng v. Northwest Indian Cemetery Protective Association, the United States Supreme Court considered whether the free exercise clause prohibited the government from constructing a road through a portion of a national... |
1989 |
| Judith V. Royster , Rory SnowArrow Fausett |
CONTROL OF THE RESERVATION ENVIRONMENT: TRIBAL PRIMACY, FEDERAL DELEGATION, AND THE LIMITS OF STATE INTRUSION |
64 Washington Law Review 581 (July, 1989) |
Abstract: Inter-sovereign disputes over environmental regulation in Indian country are increasingly common. The federal government, individual states, and native nations all assert interests in controlling pollution on Indian reservations; the question of which sovereign should regulate in this area presents complex issues of federal law, native... |
1989 |
| Chriss Wetherington |
Criminal Jurisdiction of Tribal Courts over Nonmember Indians: the Circuit Split |
1989 Duke Law Journal 1053 (September, 1989) |
Since at least the 19th century the plight of the American Indian has occupied a place in the consciousness and conscience of many Americans. Students of American history know of the injustices that often have been done to Indians. As a result of increased concern in the past twenty years over Indian rights, the federal government has adopted... |
1989 |
| Chriss Wetherington |
CRIMINAL JURISDICTION OF TRIBAL COURTS OVER NONMEMBER INDIANS: THE CIRCUIT SPLIT |
1989 Duke Law Journal 1053 (September, 1989) |
Since at least the 19th century the plight of the American Indian has occupied a place in the consciousness and conscience of many Americans. Students of American history know of the injustices that often have been done to Indians. As a result of increased concern in the past twenty years over Indian rights, the federal government has adopted... |
1989 |
| Judith Resnik |
Dependent Sovereigns: Indian Tribes, States, and the Federal Courts |
56 University of Chicago Law Review 671 (Spring, 1989) |
Introduction I. Creating the Boundaries of Jurisprudential Thought About the Federal Courts A. A Course of Study B. Premises of the Law of Federal Courts II. The Indian Tribes' Relationship to the United States III. Reasons to Give Voice A. The Interdependencies of Norms 1. Sovereignty and Membership 2. New and Old Customs 3. Codification of... |
1989 |
| Judith Resnik |
DEPENDENT SOVEREIGNS: INDIAN TRIBES, STATES, AND THE FEDERAL COURTS |
56 University of Chicago Law Review 671 (Spring, 1989) |
Introduction I. Creating the Boundaries of Jurisprudential Thought About the Federal Courts A. A Course of Study B. Premises of the Law of Federal Courts II. The Indian Tribes' Relationship to the United States III. Reasons to Give Voice A. The Interdependencies of Norms 1. Sovereignty and Membership 2. New and Old Customs 3. Codification of... |
1989 |
| Suzanne S. Schmid |
Escheat of Indian Land as a Fifth Amendment Taking in Hodel V. Irving: a New Approach to Inheritance? |
43 University of Miami Law Review 739 (January, 1989) |
I. INTRODUCTION 739 II. ESCHEAT OF INDIAN LAND IN HODEL V. IRVING 741 A. Historical Perspective 741 B. Escheat as a Fifth Amendment Taking 744 C. Escheat as a Due Process Violation 747 III. SPECIFIC ISSUES ARISING FROM INDIAN PROPERTY RIGHTS 749 IV. TRADITIONAL ESCHEAT AFTER IRVING 753 A. Escheat Under the Uniform Probate Code 753 B. Escheat of... |
1989 |
| Dennis W. Arrow |
Federal Question Doctrines and American Indian Law |
14 Oklahoma City University Law Review 263 (Summer, 1989) |
A. The Classical Historical Period: 1789-1876 B. The Complications of Original and Removal Jurisdiction: Searching for a Unifying Approach 1. Inconsistent Requirements, Statutory Distortions, and Latent Federalism Concerns: 1877-1935 2. Gully v. First National Bank 3. The Search for Avoidance Doctrines: Modern Caselaw, 1936-1987 4.... |
1989 |
| Barbara Ann Atwood |
Fighting over Indian Children: the Uses and Abuses of Jurisdictional Ambiguity |
36 UCLA Law Review 1051 (August, 1989) |
Child's Night Song Very Much, Very Much I of the Owl am Afraid, Sitting alone in the Wigwam. A boy, the son of an Indian father and non-Indian mother, is the subject of a child custody dispute between the parents. Although the family resides for several years on the reservation of the father's tribe, the mother takes the child off the reservation... |
1989 |
| Christopher A. Crain |
Free Exercise of Religion and Indian Burial Grounds--lyng V. Northwest Indian Cemetery Protective Association, 108 S. Ct. 1319 (1988) |
12 Harvard Journal of Law & Public Policy 246 (Winter, 1989) |
Sounding suspiciously similar to their supposed ideological opponents, the conservative members of the Supreme Court proved themselves amenable to expansive interpretation of the First Amendment last term in Hustler v. Falwell. But students of the Court should hardly expect a broadening of all First Amendment protections in future cases. Whatever... |
1989 |
| Avian Soifer |
Freedom of Association: Indian Tribes, Workers, and Communal Ghosts |
48 Maryland Law Review 350 (1989) |
You truly do me a great honor by inviting me to give the Sobeloff Lecture. I am particularly pleased to give this lecture because of who my predecessors have been and, even more, because of what kind of lawyer, judge, and mensch Judge Sobeloff was. It is no exaggeration to say that to speak of Judge Simon E. Sobeloff today, nearly fifteen years... |
1989 |
| Leo Gross, Harry A. Inman, W. Michael Reisman |
Harnessing International Law to Restrain and Recapture Indigenous Spoliations |
83 American Journal of International Law 56 (January, 1989) |
The ritual of condemnation of foreign corporations' spoliations of the resources of developing countries and their elevation to the level of international concern have obscured the problem of spoliations by national officials of the wealth of the states of which they are temporary custodians. The pathology is not restricted to developing countries.... |
1989 |
| Meade Emory, Robert A. Warden |
Income Taxation of Distributions by Alaska Native Corporations an Ambiguity in Need of Clarification |
64 Washington Law Review 551 (July, 1989) |
In 1971, Congress passed the Alaska Native Claims Settlement Act (ANCSA) to provide compensation for extinguishing Native land claims in Alaska. ANCSA created a system of village corporations that received money and land as compensation, and are to distribute the compensation to shareholders. The Internal Revenue Service (IRS'),... |
1989 |
| Thomas L. Wilson |
Indian Gaming and Economic Development on the Reservation |
68 Michigan Bar Journal 380 (May, 1989) |
here are seven federally recognized Indian tribes in Michigan located on reservations of varying sizes throughout the state. All of these tribes are representatives of the Three Fires (Chippewa, Ottawa or Potawatomi), and each has a similar history of geography, resources, treaties and economic development. It is therefore not surprising that each... |
1989 |
| John Fredericks III |
Indian Lands: Financing Indian Agriculture: Mortgaged Indian Lands and the Federal Trust Responsibility |
14 American Indian Law Review 105 (1989) |
Congress' enactment of the General Allotment Act in 1887 marked the beginning of a new era in federal Indian policy and a dramatic change in the communal property concepts of Indian tribes. Under the Act individual tribal members became owners of parcels of agricultural and grazing lands on their respective Indian reservations. Each reservation was... |
1989 |
| Curtis Berkey |
Indian Nations under Legal Assault |
16-WTR Human Rights 18 (Winter 1989) |
During the last ten years, the sovereign authority of American Indian governments has come under legal attack. On many reservations, non-Indians comprise a large part of the population, and Indian governments naturally assert authority over them as part of the inherent and historic power of territorial self-government. Non-Indians are increasingly... |
1989 |
| James E. Torgerson |
Indians Against Immigrants-old Rivals, New Rules: a Brief Review and Comparison of Indian Law in the Contiguous United States, Alaska, and Canada |
14 American Indian Law Review 57 (1989) |
For decades the native peoples of North America resisted the engulfing surge of European settlers. The struggle continues today, though the battle has moved from deserts and woodlands to courts and legislatures. Today it is a battle of legal rights, fought with words, not weapons. For the past century, natives have waged this battle with varying... |
1989 |
| Joshua D. Rievman |
Judicial Scrutiny of Native American Free Exercise Rights: Lyng and the Decline of the Yoder Doctrine |
17 Boston College Environmental Affairs Law Review 169 (Fall, 1989) |
[T]he danger to the continued existence of an ancient religious faith cannot be ignored simply because of the assumption that its adherents will continue to be able, at considerable sacrifice, to relocate in some more tolerant State or country or work out accommodations under threat of criminal prosecution. Forced migration of religious minorities... |
1989 |
| Charles F. Wilkinson |
Land Tenure in the Pacific: the Context for Native Hawiian Land Rights |
64 Washington Law Review 227 (April, 1989) |
The Hawaiian Islands evoke powerful images in the American public conscience. Lying two thousand miles off the shores of San Francisco, in the eastern half of the North Pacific, the islands were forged by volcanic action. Hawai'i is a land of extremes. On the island of Hawai'i, Mounts Mauna Kea and Mauna Loa rise nearly 14,000 feet above sea level.... |
1989 |
| Donald Falk |
Lyng V. Northwest Indian Cemetery Protective Association: Bulldozing First Amendment Protection of Indian Sacred Lands |
16 Ecology Law Quarterly 515 (1989) |
The United States Supreme Court's decision in Lyng v. Northwest Indian Cemetery Protective Association dramatically curtailed the ability of American Indians to preserve sacred sites on federally owned public lands. A five to three majority reversed lower court decisions that had enjoined construction of the Gasquet-Orleans Road (G-O Road) through... |
1989 |
| S. Alan Ray |
Lyng V. Northwest Indian Cemetery Protective Association: Government Property Rights and the Free Exercise Clause |
16 Hastings Constitutional Law Quarterly 483 (Spring, 1989) |
The Free Exercise Clause of the First Amendment guarantees that Congress shall make no law ... prohibiting the free exercise [of religion]. In the past, the United States Supreme Court has interpreted this clause to mean that religious practices are shielded from governmental interference absent a compelling regulatory interest. In a recent case,... |
1989 |
| Stephen McAndrew |
Lyng V. Northwest: Closing the Door to Indian Religious Sites |
18 Southwestern University Law Review 603 (1989) |
The first amendment to the Constitution provides that Congress shall make no law . prohibiting the free exercise [of religion]. The United States Supreme Court has held that the first amendment's free exercise clause prohibits any government activity that has a coercive effect on a religion or religious practice. The government activity need... |
1989 |
| Patrick T. Noonan |
Mining Desecration and the Protection of Indian Sacred Sites: a Lesson in First Amendment Hurdling |
50 University of Pittsburgh Law Review 1131 (Summer, 1989) |
The United States Department of the Interior currently recognizes the existence of over four hundred Indian tribes. While the American Indian may be a deprived minority group, in at least two areas notable exceptions persist: land and natural resources. Indian land comprises approximately fifty-one million acres or 2.2 percent of all land in the... |
1989 |
| John Gillingham |
Native American First Amendment Sacred Lands Defense: an Exercise in Judicial Abandonment |
54 Missouri Law Review 777 (Summer, 1989) |
In Lyng v. Northwest Indian Cemetery Protective Ass'n, the Court upheld the government's right to build a road and harvest timber on land considered sacred by three American Indian tribes. The Court's action in Lyng appears to effectively preclude the possibility of future suits against the government by American Indian plaintiffs attempting to... |
1989 |
| Nancy Akins |
New Direction in Sacred Lands Claims: Lyng V. Northwest Indian Cemetery Protective Association |
29 Natural Resources Journal 593 (Spring, 1989) |
In Lyng v. Northwest Indian Cemetery Protective Association, the United States Supreme Court considered whether an American Indian group could successfully challenge plans to build a road and harvest timber on federally owned lands that are traditional sacred grounds. The Court found that a federal action may interfere or virtually destroy the... |
1989 |
| Carl Ullman |
New Players in the Public Borrowing Game: Tax and Sovereignty Considerations as Freely Associated States and Indian Tribes Approach Wall Street |
11 University of Hawaii Law Review 111 (Fall, 1989) |
In recent years public borrowing in the United States has grown dramatically as authorities at all levels find themselves in greater need of significant capital accumulations in order to meet the needs of constituencies that have been either assigned to them or secured to them by the electoral process. This fiscal activity, encouraged by favorable... |
1989 |
| Kurt J. Lindower |
Noerr-pennington Antitrust Immunity and Private Standard-setting: Allied Tube & Conduit Corp. V. Indian Head, Inc., 108 S. Ct. 1931 (1988) |
58 University of Cincinnati Law Review 341 (1989) |
The National Fire Protection Association (NFPA) is a private standard-setting organization which promulgates several product standards and codes, including the National Electric Code (Code). The Code is revised every three years through a consensus process at the NFPA's annual meeting and is routinely adopted by many state and local governments... |
1989 |
| Philip P. Frickey |
Scholarship, Pedagogy, and Federal Indian Law |
87 Michigan Law Review 1199 (May, 1989) |
What follows is largely a review in search of a book. That alone hardly makes this essay unique, since law reviews publish a wide variety of things under the rubric of book reviews. Yet using a nutshell even as a point of departure for a broader discussion about a field of law will probably strike many as atypical, if not bizarre. Because nutshells... |
1989 |
| Katherine B. Crawford |
State Authority to Tax Non-indian Oil & Gas Production on Reservations: Cotton Petroleum Corp. V. New Mexico |
1989 Utah Law Review 495 (1989) |
In Cotton Petroleum Corp. v. New Mexico, the United States Supreme Court upheld oil and gas severance and production taxes imposed by the State of New Mexico against a non-Indian producer operating on an Indian reservation. The Court upheld the state taxes even though the tribe imposed severance taxes on the same activity. Although the Court has... |
1989 |
| Susan M. Williams |
State Taxation on Indian Reservations: the Impact of Cotton Petroleum Corporation V. New Mexico |
36 Federal Bar News and Journal 431 (November, 1989) |
On April 25, 1989 the United States Supreme Court issued a landmark decision in federal Indian law. By a vote of six to three, the Court held in Cotton Petroleum Corp. v. New Mexico, that the state of New Mexico validly may impose severance taxes on the on-reservation production of oil and gas by non-Indian lessees even though production also is... |
1989 |
| David S. Case |
Subsistence and Self-determination: Can Alaska Natives Have a More "Effective Voice"'? |
60 University of Colorado Law Review 1009 (1989) |
To many people the term subsistence' connotes the bare eking out of an existence, a marginal and generally miserable way of life. That is not, however, the standard dictionary definition of the term, nor is it the way in which the word is used in Alaska. There subsistence has come to stand for a class of hunting and fishing rights that, under... |
1989 |
| Frank R. Pommersheim |
THE CRUCIBLE OF SOVEREIGNTY: ANALYZING ISSUES OF TRIBAL JURISDICTION |
31 Arizona Law Review 329 (April, 1989) |
Tribal courts are of growing significance and importance throughout Indian country. This is especially true in light of the recent United States Supreme Court decisions in National Farmers Union Insurance Cos. v. Crow Tribe of Indians and Iowa Mutual Insurance Co. v. LaPlante, which hold that tribal courts are the primary forums for adjudicating... |
1989 |
| Roger A. Tellinghuisen |
The Indian Child Welfare Act of 1978: a Practical Guide with [Limited] Commentary |
34 South Dakota Law Review 660 (1988/1989) |
Until 1978, the states had been recognized as possessing broad, seemingly exclusive, jurisdiction over domestic relations and custody of their children-- at least outside of Indian country. In 1978, however, Congress enacted the Indian Child Welfare Act which thrust federal procedural and substantive law upon state courts in custody proceedings... |
1989 |
| Michelle L. Lehmann |
The Indian Child Welfare Act of 1978: Does it Apply to the Adoption of an Illegitimate Indian Child? |
38 Catholic University Law Review 511 (Winter, 1989) |
Congress enacted the Indian Child Welfare Act of 1978 (ICWA), in response to a crisis in which public and private agencies removed Indian children from their homes more frequently than non-Indian children. The ICWA seeks to remedy this disparity of placement in foster homes and adoptive homes by providing the Indian child's tribe with jurisdiction... |
1989 |
| Patrice Kunesh-Hartman |
The Indian Welfare Act of 1978: Protecting Essential Tribal Interests |
60 University of Colorado Law Review 131 (1989) |
The young Indian girl spoke quietly: I can remember [the welfare worker] coming and taking some of my cousins and friends. I didn't know why and I didn't question it. It was just done and it had always been done . . .. This rending scene has been repeated with bureaucratic regularity in the lives of thousands of Indian children who, without... |
1989 |
| Robert N. Clinton |
The Proclamation of 1763: Colonial Prelude to Two Centuries of Federal-state Conflict over the Management of Indian Affairs |
69 Boston University Law Review 329 (March, 1989) |
History is a cyclic poem written by Time upon the memories of man. PERCY BYSSHE SHELLEY On October 7, 1763225 years agothe British colonial government issued the famous Proclamation of 1763. This important document restructured the management of Indian affairs in the original thirteen states, Canada, and Florida. Additionally, the Proclamation... |
1989 |
| Margaret B. Bowman |
The Reburial of Native American Skeletal Remains: Approaches to the Resolution of a Conflict |
13 Harvard Environmental Law Review 147 (1989) |
The backhoe operator directed his shovel into the earth. Construction of the building's foundation was nearly completed. Subdenly, the operator felt his shovel hit something harder than the soft earth. He looked into pit and saw something unusual protruding from the side of the pit where he was digging. Getting off his backhoe and moving closer, he... |
1989 |