AuthorTitleCitationSummaryYear
Sheri L. Flies Namen Ii: Do the Tribes Have the Authority to Regulate Non-indian Riparian Rights on Flathead Lake? 4 Public Land Law Review 170 (Spring, 1983) Non-Indian owners of land riparian to the south half of Flathead Lake are subject to the regulation of their property, which is situated below the highwater mark, by the Confederated Salish and Kootenai Tribes of the Flathead Reservation. The purpose of this casenote is to examine how the Tribes acquired this regulatory authority. The 1855 Treaty... 1983
Michael C. Walch Terminating the Indian Termination Policy 35 Stanford Law Review 1181 (July, 1983) Congress adopted termination--the abolition of Indian reservations and the removal of all governmental power from Indian tribes--as the United States' Indian policy in the 1950's and applied the policy to numerous tribes. Termination, however, had devastating effects on tribal autonomy, community, and economic welfare. Consequently, the United... 1983
Robert A. Williams, Jr. The Medieval and Renaissance Origins of the Status of the American Indian in Western Legal Thought 57 Southern California Law Review Rev. 1 (November, 1983) Let us be clear, in the first place, about the object of our search. We are to trace the history of certain social ideals . . . . We are to look for origins of pattern, spirit, principle, that bind together thousands of statutes and decisions. To do that we must first reduce the maze of our Indian law to a manageable scheme and take account of its... 1983
Nell Jessup Newton Enforcing the Federal-indian Trust Relationship after Mitchell 31 Catholic University Law Review 635 (Summer, 1982) The legislative, judicial, and executive branches of the government have acknowledged Indian tribes' special relationship to the federal government. Borrowing concepts from trust law, courts have described this relationship most eloquently: the relationship is like that of a ward to his guardian, imposing moral obligations of the highest... 1982
  Federal Plenary Power in Indian Affairs after Weeks and Sioux Nation 131 University of Pennsylvania Law Review 235 (November, 1982) Supreme Court opinions at the turn of the century established one of the fundamental rules of federal Indian law: Congress has a broad plenary power to administer the property and affairs of Indian tribes. In Lone Wolf v. Hitchcock, the Court characterized the plenary power as a political one, not subject to be controlled by the judicial... 1982
Russel LawrenceBarsh Felix S. Cohen's Handbook of Federal Indian Law, 1982 Edition 57 Washington Law Review 799 (November, 1982) Charlottesville: Mitchie Bobbs-Merrill, 1982. Pp. v, 912, $80.00. I am led to believe that it will always be easy for a king to make the lawyers the most useful instruments of his power. Alexis de Tocqueville Forty-one years ago, the legend goes, Harvard-educated Interior Department Solicitor Felix Cohen brought order and light into what Justice... 1982
Vine DeLoria, Jr. Felix S. Cohen's Handbook of Federal Indian Law, 1982 Edition (R. Strickland et Al. Ed. 1982). Charlottesville, Virginia: Michie/bobbs-merrill. 912 Pages $80.00 54 University of Colorado Law Review 121 (Fall, 1982) In late December 1920 John Collier, recently dismissed from his post as director of adult education in California's state school system, arrived in Taos, New Mexico at the invitation of Mabel Dodge (later Luhan) to attend the Christmas ceremonies conducted at the Taos Pueblo. Collier later wrote: There, in the plaza of the Pueblo, a forthgiving... 1982
Michael C. Blumm Fulfilling the Parity Promise: a Perspective on Scientific Proof, Economic Cost, and Indian Treaty Rights in the Approval of the Columbia Basin Fish and Wildlife Program 13 Environmental Law 103 (Fall, 1982) I. INTRODUCTION. 104 II. THE FAILURE OF THE FISH AND WILDLIFE COORDINATION ACT AND THE REMEDIAL NATURE OF THE 4(H) PROGRAM. 108 III. AN OVERVIEW OF THE 4(H) PROGRAM APPROVAL STANDARDS. 112 IV. FISHERIES/HYDROPOWER BALANCING AND THE PRINCIPLE OF TEXTUAL CONSISTENCY. 118 V. INTERPRETING SOME OF THE SPECIFIC PROGRAM APPROVAL STANDARDS. 124 A. The... 1982
Anthony A. Lusvardi Montana V. United States-effects on Liberal Treaty Interpretation and Indian Rights to Lands Underlying Navigable Waters 57 Notre Dame Lawyer 689 (1982) Title to lands underlying navigable waters gives the titleholder important rights and powers, including mineral rights and jurisdictional powers. Indian rights to such lands have been a frequently litigated question. This issue has arisen when an Indian tribe has claimed title to lands underlying navigable waters based upon a treaty executed and... 1982
Leo Gross, Farrokh Jhabvala, Florida International University The Indian Year Book of International Affairs, 1980. Vol. Xviii, Part I. Edited by T. S. Rama Rao. Published under the Auspices of the Indian Study Group of International Law and Affairs, University of Madras, 1980. Pp. Vi, 563. Index. Rs. 65. 76 American Journal of International Law 464 (April, 1982) The current volume of the Year Book appears in two parts. Part I contains 14 articles on international law and politics and comparative law, 20 decisions of Indian courts in private international law, and 17 book reviews. Part II is devoted exclusively to the Grotian Society Papers on Studies in the History of the Law of Nations and also forms... 1982
Peter C. Monson United States V. Washington (Phase Ii): the Indian Fishing Conflict Moves Upstream 12 Environmental Law 469 (Winter, 1982) In 1854 and 1855 the Northwest Indian tribes and the federal government entered into treaties, each of which provided that [t]he right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory. The tribes also reserved the exclusive right to take fish in... 1982
Matthew L. Fick Water Rights on Indian Reservations-transferability of Indian Water Rights-state Administration of Non-indian Water Rights Within the Reservation- Colville Confederated Tribes V. Walton, 647 F.2d 42 (9th Cir.), Cert.denied, 454 U.s. 1092 (1981). 58 Washington Law Review 89 (December, 1982) No Name Creek is a small spring-fed stream lying entirely within the Colville Indian Reservation in north-central Washington. The creek basin is divided into seven irrigable parcels, all originally allotted to individual Indians. Four allotments are held in trust for the Colville Confederated Tribes (Tribe). Three are owned by the Waltons, non-... 1982
Russel Lawrence Barsh , James Youngblood Henderson CONTRARY JURISPRUDENCE: TRIBAL INTERESTS IN NAVIGABLE WATERWAYS BEFORE AND AFTER MONTANA v. UNITED STATES 56 Washington Law Review 627 (November, 1981) In 1974 the Crow Tribal Council enacted a resolution restricting reservation hunting and fishing to tribal members. No distinction was made between lands owned by the tribe or its members and the nearly thirty percent of the reservation area held in fee simple by non-members and the State of Montana. The resolution also purported to govern the Big... 1981
Robert N. Clinton Isolated in Their Own Country: a Defense of Federal Protection of Indian Autonomy and Self-government 33 Stanford Law Review 979 (July, 1981) With their resources and acquired knowledge, the Europeans soon appropriated to themselves most of the advantages which the natives might have derived from the possession of the soil . and the Indians have been ruined by a competition which they had not the means of sustaining. They were isolated in their own country, and their race only... 1981
Karl Forsgaard Statutory Construction-wildlife Protection Versus Indian Treaty Hunting Rights-united States V. Fryberg, 622 F.2d 1010 (9th Cir.), Cert.denied, 449 U.s. 1004 (1980). 57 Washington Law Review 225 (December, 1981) While hunting for deer on his reservation, Dean Fryberg, an Indian, shot and killed a bald eagle. Although he had a treaty right to hunt on the Tulalip Reservation under the 1855 Treaty of Point Elliot, Fryberg was charged by information with taking a bald eagle in violation of the Eagle Protection Act of 1940. He did not possess a permit which... 1981
Trude Kleess Whom Can Indians Trust after Mitchell? 53 University of Colorado Law Review 179 (Fall, 1981) In United States v. Mitchell, the Quinault Indians attempted to redress decades of federal mismanagement of timber resources on the Quinault Reservation. The Supreme Court ruled that a trust relationship based solely on the General Allotment Act is a limited one. The Court reasoned that the only purpose of the trust langauge in the Act is to... 1981
Gwendolyn Griffith Indian Claims to Groundwater: Reserved Rights or Beneficial Interest? 33 Stanford Law Review 103 (November, 1980) Disputes often arise when Indians and non-Indians claim common sources of groundwater in times of scarcity, as present law identifies neither the source nor the extent of Indian groundwater rights. This uncertainty threatens both Indian and non-Indian interests in the groundwater resource. This note examines alternative approaches to Indian rights... 1980
Telford Taylor AMERICAN CONSTITUTIONAL LAW 79 Columbia Law Review 1209 (October, 1979) In 1833, introducing his Commentaries on the Constitution of the United States, Joseph Story warned that: The reader must not expect to find in these pages any novel views and novel constructions of the Constitution. I have not the ambition to be the author of any new plan of interpreting the theory of the Constitution, or of enlarging or narrowing... 1979
  Indian Reserved Water Rights: the Winters of Our Discontent 88 Yale Law Journal 1689 (July, 1979) Water is critical to make the western desert bloom, and water development has permitted the western states to enjoy spectacular growth in recent years. Indian reservations in the West have not shared this growth, but enormous Indian water claims will strikingly affect the economic futures of both the Indians and the region. Unfortunately, legal... 1979
George Cameron Coggins , William Modrcin Native American Indians and Federal Wildlife Law 31 Stanford Law Review 375 (February, 1979) Many Native American Indians are the beneficiaries of 18th and 19th century treaties between their tribes and the United States that retain for tribal members the right to hunt and fish on certain lands, as long as water flows or grass grows. In executing these treaties, the United States implicitly recognized the importance of wildlife to the... 1979
Michael P. Gross Indian Self-determination and Tribal Sovereignty: an Analysis of Recent Federal Indian Policy 56 Texas Law Review 1195 (August, 1978) If one were to pick a dominant theme in American history it would be the nation's attempt to create a workable national entity that can accomodate the independent interests of individuals and their communities. In the century following the American Revolution, that theme focused on the relationship between a national government and the states.... 1978
Robert H. Abrams Reserved Water Rights, Indian Rights and the Narrowing Scope of Federal Jurisdiction: the Colorado River Decision 30 Stanford Law Review 1111 (July, 1978) In 1976, the United States Supreme Court decided Colorado River Water Conservation District v. United States, holding that principles of judicial administration relating to contemporaneous exercise of concurrent jurisdictions command that the federal courts abjure congressionally granted, previously attached jurisdiction of federal claims to... 1978
  Equal Protection under the Indian Civil Rights Act: Martinez V. Santa Clara Pueblo 90 Harvard Law Review 627 (January, 1977) The rights accorded American Indians in their relations with federal and state governments are the same as those of any American citizen. These rights, however, do not govern the relationship between individual Indians and their tribal governments. In an effort to afford federal protection to Indians in their internal tribal lives, Congress enacted... 1977
Lynne E. Petros The Applicability of the Federal Pollution Acts to Indian Reservations: a Case for Tribal Self-government 48 University of Colorado Law Review 63 (Fall, 1976) The rapid development of Indian reservations has raised understandable concern as to how these lands are to be protected from pollution. The problem is aggravated by political and jurisdictional conflicts between Indians, non-Indian lessees, and the federal and state governments. Each party, of course, has a stake in the determination of which laws... 1976
  Adjudication of Indian and Federal Water Rights in the Federal Courts 46 University of Colorado Law Review 555 (Summer, 1975) The United States Court of Appeals for the Tenth Circuit in United States v. Akin held that a federal court properly has and should exercise jurisdiction to adjudicate water rights claimed by the United States on its own behalf and as trustee for certain Indian tribes. This decision reversed the district court, which applied the doctrines of... 1975
Daniel G. Kelly, Jr. Indian Title: the Rights of American Natives in Lands They Have Occupied since Time Immemorial 75 Columbia Law Review 655 (April, 1975) Recently, the Seminole Indians proved aboriginal possession of the entire peninsula of Florida before, as they allege, the United States bought it for an unconscionably low price; a group of Alaskan Indians established its right to recover against the Government for unlawful trespasses on the 561/212 million acre North Slope; and most recently, a... 1975
Reid Peyton Chambers Judicial Enforcement of the Federal Trust Responsibility to Indians 27 Stanford Law Review 1213 (May, 1975) It is generally accepted that the United States owes fiduciary duties to American Indians, but the meaning and extent of these duties have seldom been analyzed. The fiduciary relationship itself has been variously characterized--as resembling a guardianship, as a guardian-ward relationship, as a fiduciary or special relationship, or as a trust... 1975
  The Case for Exclusive Tribal Power to Tax Mineral Lessees of Indian Lands 124 University of Pennsylvania Law Review 491 (December, 1975) That economic conditions on Indian reservations in America are abominable is a well-known fact. Indian tribal governments are in dire financial straits, without any adequate source of revenue. In light of the prevalence of abject poverty, unemployment, and lack of education among reservation Indians, the taxing of tribal members is not a feasible... 1975
Susan Millington Campbell A Proposal for the Quantification of Reserved Indian Water Rights 74 Columbia Law Review 1299 (November, 1974) The reservation of water by the United States for federally reserved lands represents an as yet unfulfilled claim to a vast quantity of water in the western United States. The size of the claim, if ever fully realized, would clearly place an enormous strain on the western water supply, a supply that is extremely valuable because of its importance... 1974
Reid Peyton Chambers , Monroe E. Price Regulating Sovereignty: Secretarial Discretion and the Leasing of Indian Lands 26 Stanford Law Review 1061 (May, 1974) Indian trust land can be leased by its tribal or individual owner only after the Secretary of the Interior has approved the transaction. Surface leasing of Indian land is governed principally by 25 U.S.C. § 415; enacted in 1955, section 415 permits leasing for a wide range of purposes--public, religious, educational, recreational, residential or... 1974
Daniel M. Rosenfelt Indian Schools and Community Control 25 Stanford Law Review 489 (April, 1973) C1-3Contents I. Indian Education Policy Reviewed. 492 A. Federal School System. 493 B. Federal Assistance to State Schools. 496 1. The Johnson-O'Malley Act. 496 2. Impact aid. 497 3. Termination. 500 C. Legal Obligation to Provide Educational Services. 502 1. Federal obligation. 502 2. State obligation. 505 D. Need for Increased Indian Control. 506... 1973
Vine Deloria, Jr. Custer Lives on 50 Texas Law Review 435 (January, 1972) This book, perhaps predestined to spend a year on the best seller lists, chronicles two tragedies, one ancient and one contemporary. It is the story of three decades, the period from 1860 to 1890, and the bitter clash between red men and white men over the territory of the trans-Mississippi west. Beginning with the Long Walk of the Navajo to Fort... 1972
  Constitutional Law - Equal Protection of the Laws - Federal Statute Imposing less Severe Penalty upon American Indian Who Rapes an Indian Woman than upon Other Rapists Is Constitutional. - Gray V. United States, 394 F.2d 96 (9th Cir. 1968) 82 Harvard Law Review 697 (January, 1969) Wilson Gray and two other appellants, all Navajo Indians, were convicted by a federal jury of raping a non-Indian woman on the Navajo reservation in Arizona. The district court imposed sentences of imprisonment under a statute which exposes a rapist to a maximum penalty of death if either the rapist or the victim is not an Indian. An Indian who... 1969
Daniel H. MacMeekin Red, White, and Gray: Equal Protection and the American Indian 21 Stanford Law Review 1236 (May, 1969) An American Indian who rapes a non-Indian woman on an Indian reservation may be executed, while the maximum punishment for an Indian who rapes an Indian woman on the reservation is life imprisonment. In Gray v. United States, defendants, American Indians who had raped a Caucasian woman on the Navajo Reservation in Arizona, challenged this statutory... 1969
  The Indian Bill of Rights and the Constitutional Status of Tribal Governments 82 Harvard Law Review 1343 (April, 1969) A large proportion of the approximately 280,000 American Indians living on reservations in the United States are subject to the jurisdiction of their tribal governments and are not subject to the jurisdiction of the state in which the reservation is located. The tribal government and individual Indians are not completely free of outside... 1969
  THE INDIAN BILL OF RIGHTS AND THE CONSTITUTIONAL STATUS OF TRIBAL GOVERNMENTS 82 Harvard Law Review 1343 (April, 1969) A large proportion of the approximately 280,000 American Indians living on reservations in the United States are subject to the jurisdiction of their tribal governments and are not subject to the jurisdiction of the state in which the reservation is located. The tribal government and individual Indians are not completely free of outside... 1969
  The Indian: the Forgotten American 81 Harvard Law Review 1818 (June, 1968) The attitude of America toward the Indian has long been characterized by the dichotomy between a sentimental attraction to the noble savage, often increasing with distance from the centers of Indian population, and a startling ignorance of and indifference to the actual circumstances of his life. The Negro revolution, focusing attention not only... 1968
  Federal Courts - Jurisdiction: in General - Federal Courts Lack Jurisdiction over Suit Brought by Non-indian Against Tribal Indian 79 Harvard Law Review 851 (2/1/1966) Littell v. Nakai, 344 F.2d 486 (9th Cir. 1965), cert. denied, 34 U.S.L. Week 3245 (U.S. Jan. 17, 1966). All terms of any contract with an Indian tribe for services relating to its land or to claims against the United States must be approved by the Secretary of the Interior, and his determination that acts of service have been rendered in compliance... 1966
  Indians--federal Court Has Jurisdiction to Issue Writ of Habeas Corpus on Behalf of Indian Convicted by Tribal Court 79 Harvard Law Review 436 (December, 1965) Madeline Colliflower, a member of the Gros Ventre Indian tribe, was convicted by the Law and Order Court of the Fort Belknap, Montana, Indian reservation for failing to comply with an order of the court to remove her cattle from another person's land. Mrs. Colliflower sought habeas corpus in the federal district court of Montana, alleging that her... 1965
Bethuel M. Webster Civil Liberties and Canadian Federalism 73 Harvard Law Review 1432 (May, 1960) It was a shrewd editor who suggested that these books from opposite ends of the Commonwealth be read and discussed together: the first, the 1959 Alan B. Plaunt Memorial Lectures at Carleton University hopeful and confident by a native of Quebec, poet, politician, and professor of law; the other initiated by the South African Institute of Race... 1960
Dwan V. Kerig Nuclear Weapons and International Law. By Nagendra Singh. Published under the Auspices of the Indian Council of World Affairs, New Delhi. New York: Frederick A. Praeger, 1959. Pp. 255. Index 8 Military Law Review 162 (April, 1960) The laws of war have been stated for the ground forces in an official publication, The Law of Land Warfare. For those who have had occasion to study the manual's contents it may seem that certain of its provisions fall short of representing unequivocal enunciations of rules of positive law, One such provision would appear to be that dealing with... 1960
  Tribal Property Interests in Executive-order Reservations: a Compensable Indian Right 69 Yale Law Journal 627 (March, 1960) Whether the United States must compensate Indian tribes for the taking of land in reservations created by and held under Executive order principally depends on whether Congress has recognized tribal property interests in such land. After a century and a half of sovereign non-consent to suit, the Indian Claims Commission Act of 1946 extended... 1960
  Eminent Domain - Proceedings - Fpc Licensee May Condemn Indian Land Only Through Court Proceedings Subsequent to a Finding of Noninterference with the Reservation's Purpose 72 Harvard Law Review 1372 (5/1/1959) Eminent Domain Proceedings FPC Licensee May Condemn Indian Land Only Through Court Proceedings Subsequent to a Finding of Noninterference With the Reservation's Purpose. Tuscarora Nation of Indians v. Power Authority (2d Cir. 1958); Tuscarora Indian Nation v. FPC (D.C. Cir. 1958). Congress directed the Federal Power Commission to issue a... 1959
Pradyumna K. Tripathi Free Speech in the Indian Constitution: Background and Prospect 67 Yale Law Journal 384 (January, 1958) Since 1945, many new nations have been constructed by revolution, partition or voluntary grants of sovereignty. Written constitutions, commonly prepared in greater or less haste, have in one country after another defined the scope of the new government's powers and have declared the rights of citizens who had but recently been subjects with little... 1958
Leslie Moses Oil and Gas Leasing on Indian Lands 34 Texas Law Review 790 (May, 1956) The status of Indians and Indian lands, procedures for leasing, pertinent statutes and regulations, and forms and other information concerning the same have never before been gathered into one book for use by those interested in the subject matter. Until the past several years Oklahoma was the only state in which the subject was of any interest.... 1956
Harry L. Hall, Jr. Torts-federal Tort Claims Act-governmental Function Test Rejected in Determination of Federal Liability at the 'Operational' Level.-indian Towing Co. V. United States, 76 Sup. Ct. 122 (1955) 34 Texas Law Review 956 (June, 1956) The phosphate cargo on a barge towed by a tug was damaged by sea water when the tug went aground. The owner of the tug brought suit under the Federal Tort Claims Act, 62 Stat. 933 (1948), 28 U.S.C. § 1346 (b) (1952), alleging that the grounding and the resulting cargo damage were caused by the negligence of Coast Guard personnel in allowing a... 1956
Robert G. McCloskey We the Judges 70 Harvard Law Review 189 (November, 1956) In a free society, a man who can write a book may do so without giving reasons, and very few would be disposed to set legal restraints on this principle of authorial self-determination. Yet anyone who has explored the vastness of the Cumulative Book Index or a single issue of the Publishers' Trade List Annual must have had cause to wonder whether... 1956
  Indian Tribes and Civil Rights 7 Stanford Law Review 285 (March, 1955) Indians--Constitutional Law--Civil Rights. -- Protestant members of a predominantly Catholic pueblo alleged that their religious beliefs had caused their tribal government to prevent them from building a church, holding church meetings in their homes, burying their dead in the community cemetery and using the tribal threshing facilities. Plaintiffs... 1955
Edwin R. Keedy The Constitutions of the State of Franklin, the Indian Stream Republic and the State of Deseret 101 University of Pennsylvania Law Review 516 (January, 1953) North Carolina adopted its first Constitution in 1776. At that time its territory extended westward to the Mississippi River. In June, 1784, the General Assembly voted to cede the territory west of the Cumberland Mountains to the Continental Congress. As a direct and immediate result of this action delegates from three counties west of the... 1953
Felix S. Gohen The Erosion of Indian Rights, 1950-1953: a Case Study in Bureaucracy 62 Yale Law Journal 348 (February, 1953) Our 450,000 American citizens who are members of Indian tribes are probably the only racial group in the United States whose rights are more limited in 1953 than they were in 1950. The erosion of Indian rights in this period and the factors which contributed to that erosion can be fairly evaluated only if we also view the background of Indian... 1953
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