AuthorTitleCitationSummaryYear
Peter Tasso Greywater V. Joshua and Tribal Jurisdiction over Nonmember Indians 75 Iowa Law Review 685 (March, 1990) Beginning in the late 1960s, Congress and the executive branch supposedly embarked on a new era of commitment to tribal self-government. During this same period, however, a series of Supreme Court decisions began whittling away at the authority of tribal courts. The seeds of this trend were sown in Morton v. Mancari, which held that the term ... 1990
Peter Tasso GREYWATER v. JOSHUA AND TRIBAL JURISDICTION OVER NONMEMBER INDIANS 75 Iowa Law Review 685 (March, 1990) Beginning in the late 1960s, Congress and the executive branch supposedly embarked on a new era of commitment to tribal self-government. During this same period, however, a series of Supreme Court decisions began whittling away at the authority of tribal courts. The seeds of this trend were sown in Morton v. Mancari, which held that the term... 1990
Amanda K. Wilson Hazardous & Solid Waste Dumping Grounds under Rcra's Indian Law Loophole 30 Santa Clara Law Review 1043 (Winter, 1990) Unregulated hazardous and solid waste disposal threatens the environment and human health in Indian country because jurisdiction for granting permits under the current Resource Conservation and Recovery Act (RCRA) remains unclear. In 1976, Congress responded to growing concerns about hazardous waste by enacting RCRA. The statute relies on a... 1990
Cathy W. Schindler Indian Civil Jurisdiction over Land Held in Fee by Non-indians: a Judicial Challenge in Brendale V. Confederated Tribes & Bands of Yakima Indian Nation 7 Cooley Law Review 63 (Hilary Term, 1990) In the late 1800's, a large number of Americans began migrating westward to new horizons. This shift in population forced the United States government to deal with an increasing number of conflicts between the white man and the Indian. The prevailing attitude during this time was that the Indians should be civilized in the ways of the white man's... 1990
Richard Monette Indian Country Jurisdiction and the Assimilative Crimes Act 69 Oregon Law Review 269 (1990) Recent federal policy toward Indian tribes is closely aligned with what Indians want for themselves-self-determination. But the maze of tribal, state, and federal jurisdiction in Indian country creates a great obstacle to self-government and economic self-sufficiency. Many commentators have discussed the United States' Rube Goldberg approach to... 1990
Charles Breer Indian Law--mineral Taxation--are State Severance Taxes Preempted When Imposed on Non-indian Lessees Extracting Oil and Gas from Indian Reservations Land? Cotton Petroleum Corporation V. New Mexico, 109 S. Ct. 1698 (1989) 25 Land and Water Law Review 435 (1990) Cotton Petroleum (Cotton), a non-Indian company, extracted and marketed oil and gas pursuant to five leases entered into with the Jicarilla Apache Tribe (Tribe). Cotton's leases were located on the Jicarilla Apache Reservation, a reservation encompassing 742,135 acres of tribal trust property in northwestern New Mexico. The Indian Mineral Leasing... 1990
Janice Brandt Indian Sovereignty--beyond the "Well-pleaded Complaint Rule" 15 Thurgood Marshall Law Review 169 (Fall 1989-Spring, 1990) The State of Oklahoma (State) brought a cause of action against the Chickasaw Nation (Nation) and its agent Jan Graham to recover excise taxes on bingo games and from the sales of cigarettes on the Nation's property. This case raises important issues of federal jurisdiction and the doctrine of Indian sovereignty. There are two provisions which set... 1990
F. Henry Ellis, III Indian Tribal Sovereignty and the Tribal Courts: the Myth and the Reality 13 Suffolk Transnational Law Journal 714 (Spring, 1990) The United States and the Native American Indian tribes have a unique relationship; the Indian tribes represent politically autonomous populations who possess their own sovereignty, and yet they reside within the borders of the United States. The independent status of the Indians has been recognized by the United States Constitution and was... 1990
Susan M. Williams Indian Winters Water Rights Administration: Averting New War 11 Public Land Law Review 53 (Spring, 1990) American Indian tribes' expansive federal reserved rights to water for their reservations are extremely controversial in the western states. Most persons obtain water rights under state laws which impose substantial restrictions on the right and award water on a time priority basis. The relative lack of restrictions on the use of tribes' reserved... 1990
Lynn A. Kerbeshian Indians--domicile: Federal Definitions of Domicile Determines Jurisdiction under Indian Child Welfare Act 66 North Dakota Law Review 553 (1990) In December 1985, twin illegitimate children were born to enrolled members of the Mississippi Band of Choctaw Indians residing on the Choctaw Reservation. The twin babies were born approximately 200 miles from the reservation. In January 1986, the parents executed adoption consent forms in the state chancery court. Following adoption by a non-... 1990
Donna J. Goldsmith Individual Vs. Collective Rights: the Indian Child Welfare Act 13 Harvard Women's Law Journal L.J. 1 (Spring, 1990) I am a listener, said the American Indian. The White Man does not ask Me what I think. The White Man thinks he's always right. No chei nu ca bache coo Whace. Let every American Indian make it clear. We are not interested in being made over as White Men or White Women. Nor of the White Race. We are what we are. Being Indians and members of the... 1990
Charles L.Kent, Of the District of Columbia and New York Bars, Barrister-at-Law, Lincoln's Inn International Dimensions of Humanitarian Law. United Nations Educational, Scientific and Cultural Organization. Geneva: Henry Dunant Institute; Paris: Unesco; Dordrecht, Boston, London: Martinus Nijhoff Publishers, 1988. Pp. Xxii, 328. Index. Dfl. 100; $4 84 American Journal of International Law 787 (July, 1990) These three recent books deserve a place in libraries devoted to humanitarian concepts in international law. The first, International Dimensions of Humanitarian Law, was commissioned by UNESCO from the Henry Dunant Institute as the result of a General Conference of UNESCO in 1978. That conference recommended that, in cooperation with the... 1990
David M. Stanton Is There a Reserved Water Right for Wildlife on the Wind River Indian Reservation?-a Critical Analysis of the Big Horn River General Adjudication 35 South Dakota Law Review 326 (1990) In In re the Rights to Use the Water in the Big Horn River the Supreme Court of Wyoming held that Indian tribes occupying the Wind River Indian Reservation and the United States were entitled to an award of reserved water rights quantified solely on the basis of an agricultural purpose for the Indian reservation dating from the time the reservation... 1990
Samuel D. Brooks Native American Indians' Fruitless Search for First Amendment Protection of Their Sacred Religious Sites 24 Valparaiso University Law Review 521 (Spring, 1990) America does not need to violate the religions of her native peoples. There is room for and great value in cultural and religious diversity. We would be poorer if these American Indian religions disappeared from the face of the Earth. Native American Indians have practiced their religion on sacred sites for thousands of years. Today, many of... 1990
Camala Collins No More Religious Protection: the Impact of Lyng V. Northwest Indian Cemetery Protection Ass'n 38 Washington University Journal of Urban and Contemporary Law 369 (Fall, 1990) The free exercise clause of the first amendment protects the right to practice religion. Courts and legislatures recognize that the right to believe in and to worship freely a Supreme Being constitutes a fundamental right. Consequently, an individual has the right to invoke constitutional protection when government policy or action restrains his or... 1990
Andrea Geiger Oakley Not on Clams Alone: Determining Indian Title to Intertial Lands--united States V. Aam, 887 F.2d 190 (9th Cir. 1989) 65 Washington Law Review 713 (July, 1990) The equal footing doctrine creates a presumption against conveyance of the beds of navigable waters by the United States prior to statehood. Where submerged lands lie within the boundaries of an Indian reservation, the presumption may conflict with the canons of construction applicable in Indian law. In United States v. Aam, the Ninth... 1990
Charley Carpenter Preempting Indian Preemption: Cotton Petroleum Corp. V. New Mexico 39 Catholic University Law Review 639 (Winter, 1990) The indigenous peoples of North America maintained sovereign political and legal institutions well before the Europeans discovered and conquered them. Integrating these peoples, and their institutions, into the system of constitutional federalism that their conquerers eventually developed has proven problematic from the earliest days of European... 1990
Joseph William Singer Property and Coercion in Federal Indian Law: the Conflict Between Critical and Complacent Pragmatism 63 Southern California Law Review 1821 (September, 1990) Pent in under every system of moral rules are innumerable persons whom it weighs upon, and goods which it represses; and these are always rumbling and grumbling in the background, and ready for any issue by which they may get free. [W]e can judge what the law is as [a] matter of fact only by telling how it operates, and what are its effects in and... 1990
Edward L. Thompson Protecting Abused Children: a Judge's Perspective on Public Law Deprived Child Proceedings and the Impact of the Indian Child Welfare Acts 15 American Indian Law Review Rev. 1 (1990) Section 1. Introduction Section 2. History and Philosophy A. The fundamental nature of the parentchild bond B. Duty to report child abuse C. Philosophy of the juvenile court D. Indian children E. The secret world of juvenile court proceedings Section 3. Pretrial Matters A. Jurisdiction B. The Uniform Child Custody Jurisdiction Act C. Jurisdiction... 1990
Kevin J. Worthen Shedding New Light on an Old Debate: a Federal Indian Law Perspective on Congressional Authority to Limit Federal Question Jurisdiction 75 Minnesota Law Review 65 (October, 1990) For the past thirty years, legal scholars and legislators have vigorously debated the constitutionality of legislative proposals limiting federal court jurisdiction over claims arising under federal law. This dispute has been waged in numerous congressional hearings and dozens of law review articles. Despite the vigorousness of the discussion and... 1990
Ruth L. Kovnat Solid Waste Regulation in Indian Country 21 New Mexico Law Review 121 (Winter, 1990) Imagine a line that describes the boundary between Indian Country and state lands. On the Indian side of the line, land ownership is complicated: some land is held in trust by the United States for the benefit of the tribe, some land is held by tribal members subject to a trust, some land is held in fee by tribal members, and the rest of the land... 1990
Craighton Goeppele Solutions for Uneasy Neighbors: Regulating the Reservation Environment after Brendale V. Confederated Tribes & Bands of Yakima Indian Nation, 109 S.ct. 2994 (1989) 65 Washington Law Review 417 (April, 1990) The United States Supreme Court's decision in Brendale v. Confederated Tribes & Bands of Yakima Indian Nation undermines comprehensive land use planning in some parts of Indian reservations and contributes to an environment of legal uncertainty on reservations. The loss of effective land use planning on Indian reservations will have an... 1990
Stewart P. Ralphs Taxation of Non-indian Mineral Leases on Tribal Lands: Validity of Both Tribe and State Severance Taxes? 11 Journal of Energy, Natural Resources and Environmental Law 127 (1990) As a result of several recent Supreme Court decisions, oil companies that extract oil and gas from Indian reservation lands are now subject to both state and tribal severance taxes. These cases raise issues of the constitutionality of double taxation and the sovereign rights of Indian tribes in the United States. In Merrion v. Jicarilla Apache... 1990
Robert Laurence The Enforcement of Judgments Across Indian Reservation Boundaries: Full Faith and Credit, Comity, and the Indian Civil Rights Act 69 Oregon Law Review 589 (1990) I. The Federal Court Judgment in Little Horn, or Dry Creek Lodge Lives! A. Dry Creek Lodge Revisited B. Amending the ICRA to Overrule Both Oliphant and Martinez C. Tribal Strategy D. Little Horn Considered From the Perspective of Dry Creek Lodge II. Alternate Roles for the Federal Court in Enforcing Judgments: Annis v. Dewey County Bank... 1990
Richard M. Carson The Free Exercise of Native American Religions on Public Lands: the Development of and Outlook for Protection under the Free Exercise Clause of the First Amendment 11 Public Land Law Review 181 (Spring, 1990) The public lands of the United States federal government are important resources upon which this country depends for its well-being. However, the use of such land is subject to several limitations. One limitation is the protected use of public lands by American Indians for religious purposes. For years, American Indians did not claim a right to... 1990
Gary Sokolow The Future of Gambling in Indian Country 15 American Indian Law Review 151 (1990) This article will analyze the legislative and legal issues that arise from gambling on Indian reservations. First, a general overview of Indian country gaming will be presented. Next, the federal government's attempt, through existing laws and proposed legislation, to deal with this situation will be discussed. A review of pending legislation will... 1990
Robert C. Jeffrey, Jr. The Indian Civil Rights Act and the Martinez Decision: a Reconsideration 35 South Dakota Law Review 355 (1990) The salient fact about the Indian Civil Rights Act (ICRA) is that the constitutional rights belonging to most Americans by virtue of their citizenship are extended to those Americans of Indian descent, living on reservations under tribal governments, only by statute. For despite the fact that all Indians had been naturalized by Congress in 1924, in... 1990
Robert N. Clinton The Rights of Indigenous Peoples as Collective Group Rights 32 Arizona Law Review 739 (1990) The movement for international and domestic legal protection of the rights of indigenous and tribal peoples has refocused attention on the fundamental nature of our conception of human rights. Many of the proposals for the protection of tribal rights deal with such questions in the manner in which the affected indigenous peoples understand them, as... 1990
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
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