AuthorTitleCitationSummaryYear
William C. Canby, Jr. The Status of Indian Tribes in American Law Today 62 Washington Law Review Rev. 1 (January, 1987) In describing the subject of my lecture to Dean Fletcher of this law school, I said that it would deal with two questions: Are the fundamental assumptions underlying the special status of Indian tribes changing? If so, what will be the effect of those changes? I considered simply saying that the answer to the first question is no and that the... 1987
Rachel San Kronowitz, Joanne Lichtman, Steven Paul McSloy, Matthew G. Olsen Toward Consent and Cooperation: Reconsidering the Political Status of Indian Nations 22 Harvard Civil Rights-Civil Liberties Law Review 507 (Spring, 1987) C1-3Table of Contents I. Limiting Federal Plenary Power: Indian Sovereignty and the Constitution. 509 A. Historical Recognition of Indian Sovereignty. 511 1. International Law and the Colonial Period. 511 2. The Marshall Court Cases. 514 B. The Rise of Federal Plenary Power. 522 1. The Property Power and the Beginnings of Federal Power over Indians... 1987
Todd Howland U.s. Law as a Tool of Forced Social Change: a Contextual Examination of the Human Rights Violations by the United States Government Against Native Americans at Big Mountain 7 Boston College Third World Law Journal 61 (Winter, 1987) I. INTRODUCTION. 61 II. THE BIG MOUNTAIN DISPUTE. 64 A. A Historical and Social Perspective. 64 B. The Reservations. 67 C. Current Legal Actions. 70 III. LEGAL STATUS OF AMERICAN INDIANS. 72 IV. OVERVIEW OF HUMAN RIGHTS VIOLATIONS. 78 A. Contemporary International Human Rights Law. 78 1. Right to Self-Determination. 80 2. Prohibition of Genocide.... 1987
Leslie Allen Who Should Control Hazardous Waste on Native American Lands? Looking Beyond Washington Department of Ecology V. Epa 14 Ecology Law Quarterly 69 (1987) The Resource Conservation and Recovery Act of 1976 (RCRA) provides a comprehensive program to manage hazardous wastes. A central feature of the Act is that it encourages states to assume responsibility for hazardous waste activity within their borders. Although the Act does not specifically address the problem of hazardous waste on Native American... 1987
Daniel L. Rotenberg American Indian Tribal Death-a Centennial Remembrance 41 University of Miami Law Review 409 (December, 1986) The 200th birthday of the United States Constitution will produce a profusion of patriotic phrases, and well it should. At the same time, however, another historic event is worth noting. One hundred years ago, on May 10, 1886 to be precise, American Indian sovereignty died. It was a clean and quiet death. Cavalry troops were not to blame, neither... 1986
Daniel L. Rotenberg AMERICAN INDIAN TRIBAL DEATH-A CENTENNIAL REMEMBRANCE 41 University of Miami Law Review 409 (December, 1986) The 200th birthday of the United States Constitution will produce a profusion of patriotic phrases, and well it should. At the same time, however, another historic event is worth noting. One hundred years ago, on May 10, 1886 to be precise, American Indian sovereignty died. It was a clean and quiet death. Cavalry troops were not to blame, neither... 1986
James Warren Springer American Indians and the Law of Real Property in Colonial New England 30 American Journal of Legal History 25 (January, 1986) This article deals with colonial New England's law of real property in its application to Indians. It is concerned with what policies the colonial governments adopted in dealing with Indian lands, what rights and disabilities in relation to land ownership were accorded the Indians, how Indian property rights were similar to or different from those... 1986
H. Barry Holt Can Indians Hunt in National Parks? Determinable Indian Treaty Rights and United States V. Hicks 16 Environmental Law 207 (Winter, 1986) The arrest and conviction of two members of the Quinault Indian Tribe for killing elk within Olympic National Park raise specific questions about the nature and extent of Indian treaty rights and the federal government's policy toward the treaty rights. This Article discusses the interpretation of Indian treaties, the nature of the rights reserved... 1986
Sheri L. Gronhovd, John F. Lawlor, Sharon R. O'Keefe, Kelly D. Talcott Constitutional Law-northwest Indian Cemetery Protective Association V. Peterson: Indian Religious Sites Prevail over Public Land Development 62 Notre Dame Law Review 125 (1986) The first amendment prohibits the government from imposing burdens upon the free exercise of religion. While religious beliefs are protected absolutely, the courts have restricted religious practices where governmental interests are overriding. In one class of free exercise cases, the federal courts have evaluated the claims of North American... 1986
Peter F. Carroll Drumming out the Intent of the Indian Mineral Leasing Act of 1938 7 Public Land Law Review 135 (Spring, 1986) Historically, states could not tax Indian interests on Indian lands without express congressional authorization. Not until 1924 did Congress enact specific legislation that allowed states to tax Indian mineral leases. The applicability of that act was limited to Indian lands which were bought and paid for until Congress enacted the Act of March 3,... 1986
Russel Lawrence Barsh Indigenous Peoples: an Emerging Object of International Law 80 American Journal of International Law 369 (April, 1986) The Working Group on Indigenous Populations, an organ of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, ended its fourth annual session last August by distributing seven draft principles to governments and nongovernmental organizations (NGOs) for comment as the first step in preparing a draft... 1986
Ralph W. Johnson Law and Alaska Natives: the Warp and Woof of a Field of Law in Transition Book Review Of- Alaska Natives and American Laws by David Case. University of Alaska Press, 1984. Pp. Xxii, 586. 61 Washington Law Review 287 (January, 1986) Occasionally a legal scholar publishes a work that successfully organizes a wide array of legal sources into a new, distinct field of law. One such work appeared in 1942 with the publication of Felix Cohen's Handbook of Federal Indian Law (Handbook). Professor Cohen's book conceptualized and created the field of Indian Law by synthesizing a... 1986
John W. Ragsdale, Jr. Law and Environment in Modern America and among the Hopi Indians: a Comparison of Values 10 Harvard Environmental Law Review 417 (1986) It is often debated whether personal values shape a society's institutions or whether the political, economic, and legal infrastructure determines what people believe. However, a mutual reinforcement exists: values formed by myth, religion, custom, and education are in large part the foundation for social institutions, which in turn influence the... 1986
James Harvey Domengeaux Native-born Acadians and the Equality Ideal 46 Louisiana Law Review 1151 (July, 1986) Title VII of the Civil Rights Act (the Act) of 1964 makes it unlawful for employers t o fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . national origin. Part 1 of this... 1986
Adele Fine Off-reservation Enforcement of the Federal-indian Trust Responsibility 7 Public Land Law Review 117 (Spring, 1986) The federal government's trust responsibility to Indians is often used to enforce Indian rights against the federal government. Courts have been especially willing to invoke the trust responsibility against federal executive officials entrusted with the management of Indian property held in trust for tribes by the federal government. Ruling on... 1986
  Restitution: the Land Claims of the Mashpee, Passamaquoddy and Penobscot Indians of New England. By Paul Brodeur. With an Afterword by Thomas N. Tureen. Boston: Northeastern Unviersity, Press. 1985. Pp. 148. $18.95. 99 Harvard Law Review 703 (January, 1986) In a lawsuit for the return of Indian lands, neither party can afford to lose: Native American plaintiffs risk termination of all claims to the land, while non-Indian defendants stand to lose homes and businesses that they may have owned for generations. Partly because of the high stakes involved and partly because such litigation is extremely... 1986
Robert A. Williams, Jr. The Algebra of Federal Indian Law: the Hard Trial of Decolonizing and Americanizing the White Man's Indian Jurisprudence 1986 Wisconsin Law Review 219 (1986) Professor Robert Williams examines the historical origins of modern Indian law jurisprudence. He argues that the white man's European-derived legal discourse relies on historically derived myths to legitimize the colonization and subordination of Indian tribes. These myths have their roots in the medieval Christian Church's attempts to use legal... 1986
Richard A. Posner THE CONSTITUTION AS MIRROR: TRIBE'S CONSTITUTIONAL CHOICES 84 Michigan Law Review 551 (February/April, 1986) This book of essays (some previously published) by a leading professor and practitioner of constitutional law argues, in effect and often in words close to these, that the Constitution is what we want it to be (hence choices') and that what we should want it to be is the charter of a radically egalitarian society. Professor Tribe acknowledges the... 1986
Rick Best The Determination of Title to Submerged Lands on Indian Reservations 61 Washington Law Review 1185 (July, 1986) American Indians have long realized that the gap between their theoretical rights and the real world is a larger one than for most Americans. The treatment of submerged lands within Indian reservations provides a classic example of the Indian rights gap. Two possible owners may claim such lands under navigable water: the tribe or one of the several... 1986
Diane Brazen Gould The First Amendment and the American Indian Religious Freedom Act: an Approach to Protecting Native American Religion 71 Iowa Law Review 869 (March, 1986) Religion is central to American Indian society and pervades every aspect of Indian life. To continue tribal culture, American Indians must be free to practice their religion and to teach religious practices to their children. While the free exercise clause of the first amendment protects American Indian religious freedom, courts have often failed... 1986
Russel Lawrence Barsh The Ix Inter-american Indian Congress 80 American Journal of International Law 682 (July, 1986) Forty-five years ago, U.S. Indian Commissioner John Collier helped persuade the members of the Pan American Union (now the Organization of American States) to establish the Inter-American Indian Institute to elucidate the problems affecting the Indian groups within their respective jurisdictions, and to cooperate with one another, on a basis of... 1986
Karl J. Kramer The Most Dangerous Branch: an Institutional Approach to Understanding the Role of the Judiciary in American Indian Jurisdictional Determinations 1986 Wisconsin Law Review 989 (1986) The United States Supreme Court has had a significant role in determining jurisdictional control over Indian county. Over its long history, the Court had developed a set of doctrines for resolving disputes between federal, state and tribal governments. The Court had traditionally purported to construe statutes and treaties in favor of tribal... 1986
Steven J. Shupe Water in Indian Country: from Paper Rights to a Managed Resource 57 University of Colorado Law Review 561 (Spring, 1986) The importance of water throughout the western United States is growing with each decade. New users are competing for overappropriated supplies, sources are being lost to contamination, and recent measures to protect the many economic and intangible values of free-flowing waters are heightening conflicts over this limited resource. The growing need... 1986
Maureen M. Crough A Proposal for Extension of the Occupational Safety and Health Act to Indian-owned Businesses on Reservations 18 University of Michigan Journal of Law Reform 473 (Winter, 1985) In 1970, Congress passed the Occupational Safety and Health Act to protect the health of American workers. The Act is a general statute that does not explicitly state that it applies to Indian-owned businesses on reservations. In Donovan v. Coeur d'Alene Tribal Farm the Ninth Circuit held that the Act applies to Indian businesses, but in Donovan v.... 1985
H. Barry Holt Archeological Preservation on Indian Lands: Conflicts and Dilemmas in Applying the National Historic Preservation Act 15 Environmental Law 413 (Winter, 1985) I. Introduction II. Background A. Indians and Archeology: Religious Conflicts B. The National Historic Preservation Program Under NHPA 1. The National Register and State Preservation Programs 2. Federal Agency Responsibilities Under NHPA 3. ARPA Permits and NHPA Compliance III. NHPA On Indian Lands A. Indian Economic Development B. Indian Concerns... 1985
Catherine W. Brown , Reporter Are Indigenous Populations Entitled to International Juridical Personality? 79 American Society of International Law Proceedings 189 (April 25-27, 1985) The panel convened at 8:45 a.m., April 26, 1985, Richard A. Falk presiding. The Chairman praised the Society for devoting a session to rights of indigenous peoples, noting this subject had long been neglected but was increasingly important. He said that the term rights of indigenous peoples was often used interchangeably with aboriginal rights,... 1985
David L. Gregory CONSTITUTIONAL CHOICES. BY LAURENCE TRIBE. CAMBRIDGE, MASSACHUSETTS: HARVARD UNIVERSITY PRESS, 1985. Pp. xiv, 458. $29.95. 60 Tulane Law Review 437 (December, 1985) Professor Laurence Tribe is the premier constitutional scholar in the United States. His treatise, American Constitutional Law, written in 1978, is the classic source for lucid, integrated exposition of constitutional law. Teaching at Harvard Law School since 1968, he has pursued several successful legal careers in less than two decades. He is a... 1985
Lance Liebman Equalities Real and Ideal: Affirmative Action in Indian Law 98 Harvard Law Review 1679 (May, 1985) American legal scholars have devoted surprisingly little effort to studying India. In India, as in America, judges, lawyers, and legislators have had to shape a transplanted legal system with English roots. Both countries have adapted English legal institutions to conditions far more heterogeneousethnically, racially, linguistically, and... 1985
  Indian Country. By Peter Matthiessen, New York; Viking Press. 1984. Pp. Xii, 338. $17.95. 98 Harvard Law Review 1104 (March, 1985) In Indian Country, Peter Matthiessen has collected eleven entries in his journal of travels among the traditional American Indiansthose few who continue to reject accommodation with the dominant culture. With meticulous care, Matthiessen chronicles the efforts of groups in the Florida Everglades, along the Tennessee Valley, on the New York-Canada... 1985
  Indian Land Claims 99 Harvard Law Review Association 254 (November, 1985) In recent years, American Indian tribes have brought sizeable lawsuits for land conveyed in violation of the Nonintercourse Act during the early history of the United States. Last Term, in County of Oneida v. Oneida Indian Nation, the Supreme Court held that, under federal common law, several Indian tribes could base a cause of action upon an... 1985
Sarah B. Gordon Indian Religious Freedom and Governmental Development of Public Lands 94 Yale Law Journal 1447 (May, 1985) In the early 1970's, the federal government abandoned its official policy of terminating tribes as a means of forcing American Indians to assimilate into mainstream society. Yet the elimination of the basis of Indian religious belief by government action continues apace. The recent resurgence of site-specific Indian religions, coinciding with... 1985
John F. Walsh Settling the Alaska Native Claims Settlement Act 38 Stanford Law Review 227 (November, 1985) In 1971, after years of discussion, public debate, and congressional hearings, the Native peoples of Alaska won what they believed to be a great victory. In December of that year, the Congress of the United States agreed to compensate Native Alaskans for the land taken from them over the course of one hundred years of United States control of... 1985
Robert A. Williams, Jr. Small Steps on the Long Road to Self-sufficiency for Indian Nations: the Indian Tribal Governmental Tax Status Act of 1982 22 Harvard Journal on Legislation 335 (Summer, 1985) In enacting the Indian Tribal Governmental Tax Status Act of 1982, Congress attempted to eliminate economic obstacles to tribal self-sufficiency by granting Indian tribes a tax status similar to that of state and local governments. This status provides Indian tribes with the ability to implement previously unavailable fiscal initiatives. It is... 1985
Mark Ulmer Tribal Property: Defining the Parameters of the Federal Trust Relationship under the Non-intercourse Act: Catawba Indian Tribe V. South Carolina 12 American Indian Law Review 101 (1985) Where today are the Pequot? Where are the Narragansett, the Mohican, the Pokanoket, and many other once powerful Tribes of our people? They have vanished before the avarice and the oppression of the White Man, as snow before a summer sun. Tecumseh, of the Shawnee. If a man loses anything and goes back and looks for it, he will find it, and that is... 1985
Mark Ulmer TRIBAL PROPERTY: DEFINING THE PARAMETERS OF THE FEDERAL TRUST RELATIONSHIP UNDER THE NON-INTERCOURSE ACT: CATAWBA INDIAN TRIBE v. SOUTH CAROLINA 12 American Indian Law Review 101 (1985) Where today are the Pequot? Where are the Narragansett, the Mohican, the Pokanoket, and many other once powerful Tribes of our people? They have vanished before the avarice and the oppression of the White Man, as snow before a summer sun. Tecumseh, of the Shawnee. If a man loses anything and goes back and looks for it, he will find it, and that is... 1985
Andrew S. Montgomery Tribal Sovereignty and Congressional Dominion: Rights-of-way for Gas Pipelines on Indian Reservations 38 Stanford Law Review 195 (November, 1985) Justice Black stated, in an important Indian law case of over 20 years ago, Great nations, like great men, should keep their word. The great nations and men might do well to heed the Justice's warning, if only they knew what their word was. But for natural resource developers and Indian tribes, the nation's word has become obscure. Indian law... 1985
D.H. Cole United States V. Pend Oreille County P.u.d. No.1: a Signal Conflict Between Equal Footing and Aboriginal Indian Title 16 Environmental Law 163 (Fall, 1985) A summary judgment decision is ordinarily not casenote material. But the denial of summary judgment in Pend Oreille proved a significant victory to tribal bedlands claimants averting aboriginal rights. The decision allows tribes to avoid the presumption of state ownership of lands beneath navigable rivers, established by the Supreme Court in... 1985
Kenneth P. Pitt Eagles and Indians: the Law and the Survival of a Species 5 Public Land Law Review 100 (Spring, 1984) An ambiguity concerning Indian treaty hunting rights exists within the Eagle Protection Act. This ambiguity may be severe enough to negate the intent of the act; hastening the bald eagle's rate of decline or at least slowing its rate of recovery. To the bald eagle's misfortune, the Eighth and Ninth Circuit Courts of Appeal have interpreted this... 1984
Nell Jessup Newton Federal Power over Indians: its Sources, Scope, and Limitations 132 University of Pennsylvania Law Review 195 (January, 1984) Judicial deference to federal legislation affecting Indians is a theme that has persisted throughout the two-hundred-year history of American Indian law. The Supreme Court has sustained nearly every piece of federal legislation it has considered directly regulating Indian tribes, whether challenged as being beyond federal power or within that power... 1984
Laurie Reynolds Indian Hunting and Fishing Rights: the Role of Tribal Sovereignty and Preemption 62 North Carolina Law Review 743 (April, 1984) American Indian tribes enjoy a federally-protected quasi-sovereign status within the states in which they are located. The vague limits of tribal sovereignty, however, result in overlapping state laws and tribal regulations and corresponding tensions between state and tribal authorities. Professor Reynolds suggests a presumption of tribal... 1984
Russel Lawrence Barsh Is There Any Indian "Law" Left? A Review of the Supreme Court's 1982 Term 59 Washington Law Review 863 (September, 1984) There is nothing too absurd but what authority can be found for it. Generality and constancy are said to be fundamental requirements of law. Both go to the essential predictability associated with fairness and, in a more analytical context, with economic efficiency. Western liberal tradition views arbitrariness as a great demon. A fair system... 1984
Kimberly T. Ellwanger Money Damages for Breach of the Federal-indian Trust Relationship after Mitchell Ii-united States V. Mitchell, 103 S.ct. 2961 (1983). 59 Washington Law Review 675 (July, 1984) The trust relationship between the federal government and the Indians has been an evolving doctrine in Indian law. Initially, fiduciary language was used to describe a political and moral relationship between the government and Indians. Over the years, courts have cited the federal-Indian trust relationship as authority in several different... 1984
John Edward Barry Oneida Indian Nation V. County of Oneida: Tribal Rights of Action and the Indian Trade and Intercourse Act 84 Columbia Law Review 1852 (November, 1984) In Oneida Indian Nation v. County of Oneida, the Second Circuit held that the Oneida Indians could maintain suit in federal court against the counties of Madison and Oneida, New York for the allegedly wrongful occupation of lands which New York State purchased from the tribe in 1795 in violation of the Indian Trade and Intercourse Act. Although the... 1984
John Edward Barry ONEIDA INDIAN NATION v. COUNTY OF ONEIDA: TRIBAL RIGHTS OF ACTION AND THE INDIAN TRADE AND INTERCOURSE ACT 84 Columbia Law Review 1852 (November, 1984) In Oneida Indian Nation v. County of Oneida, the Second Circuit held that the Oneida Indians could maintain suit in federal court against the counties of Madison and Oneida, New York for the allegedly wrongful occupation of lands which New York State purchased from the tribe in 1795 in violation of the Indian Trade and Intercourse Act. Although the... 1984
Mickale Carter Regulatory Jurisdiction on Indian Reservations in Montana 5 Public Land Law Review 147 (Spring, 1984) In Montana there are seven Indian reservation amounting to 8,347,185 acres, or a little over nine percent of the state's total land area. Indian reservations are a unique form of federal reserve land. Unlike other federal reserves, national forests and parks, for example, the purpose for which Indian reservations were formed was not for a... 1984
Daina Upite Resolving Indian Reserved Water Rights in the Wake of San Carlos Apache Tribe 15 Environmental Law 181 (Fall, 1984) Indian tribes are major competitors for water in the arid western states where competition for this scarce resource is particularly intense. There have been continuing efforts to rank and quantify water rights to eliminate the uncertainity introduced into the allocation of water resources by the existence of Indian and other federal water rights.... 1984
  Rethinking the Trust Doctrine in Federal Indian Law 98 Harvard Law Review 422 (December, 1984) Moral rhetoric suffuses federal Indian law. For a century and a half, the President and Congress have explicitly invoked morality or used moral terminology to justify actions with legal consequences for American Indians. Courts have also drawn on moral principles in addressing Indian affairs, most notably in developing the trust doctrine, which... 1984
Bradley Scott Bridgewater TAXATION: MERRION v. JICARILLE APACHE TRIBE: WINE OR VINEGAR FOR OKLAHOMA TRIBES? 37 Oklahoma Law Review 369 (Summer, 1984) Today, American Indians face a world of sharp contrasts. On one hand, they have heard the former Secretary of the Interior proclaiming: We have 50 million acres of Indian reservations, 1.4 million American Indians, and every social problem is exaggerated because of socialistic government policies on the Indian reservations: the highest divorce... 1984
Sharon O'Brien THE MEDICINE LINE: A BORDER DIVIDING TRIBAL SOVEREIGNTY, ECONOMIES AND FAMILIES 53 Fordham Law Review 315 (November, 1984) AGAIN and again Blackfeet warriors fleeing northward after a raiding attack watched with growing amazement as the pursuing troops of the United States Army came to a sudden, almost magical stop. Again and again, fleeing southward, they saw the same thing happen as the Canadian Mounties reined to an abrupt halt. The tribes of the Blackfeet... 1984
David Goldstein Indian Law-indian Taxation of Non-indian Mineral Lessees 50 Tennessee Law Review 403 (Winter, 1983) Plaintiffs entered into longterm mineral leases with the Jicarilla Apache Tribe to produce oil and gas on the Tribe's reservation in exchange for a cash bonus, annual rents, and royalties. The Tribe later enacted a severance tax on oil and gas production on the reservation. Plaintiffs sought to enjoin enforcement of the tax in the United States... 1983
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