AuthorTitleCitationSummaryYear
Judith V. Royster , Rory SnowArrow Fausett Fresh Pursuit onto Native American Reservations: State Rights 'To Pursue Savage Hostile Indian Marauders Across the Border' 59 University of Colorado Law Review 191 (Spring, 1988) L1-3TABLE OF CONTENTS I. Introduction. 192 II. Criminal Jurisdiction. 196 A. Off-Reservation Jurisdiction. 196 B. Jurisdiction Within Reservation Boundaries. 198 1. Tribal Jurisdiction. 199 2. State and Federal Jurisdiction. 209 a. Public Law 280 Reservations. 210 b. Non-Public Law 280 Reservations. 220 3. 223 C. On-Reservation Arrest for... 1988
Judith V. Royster , Rory SnowArrow Fausett FRESH PURSUIT ONTO NATIVE AMERICAN RESERVATIONS: STATE RIGHTS 'TO PURSUE SAVAGE HOSTILE INDIAN MARAUDERS ACROSS THE BORDER' 59 University of Colorado Law Review 191 (Spring, 1988) L1-3TABLE OF CONTENTS I. Introduction. 192 II. Criminal Jurisdiction. 196 A. Off-Reservation Jurisdiction. 196 B. Jurisdiction Within Reservation Boundaries. 198 1. Tribal Jurisdiction. 199 2. State and Federal Jurisdiction. 209 a. Public Law 280 Reservations. 210 b. Non-Public Law 280 Reservations. 220 3. Summary. 223 C. On-Reservation Arrest for... 1988
Richard W. Hughes Indian Law 18 New Mexico Law Review 403 (Winter, 1988) The field of Indian Lawan amalgam of statutory and decisional law that arises out of the special and unique relationship between Indian tribes and the federal government has been treated in the annual Survey issue only twice before. It inclusion at all may seem odd: the field is one of federal law, as to which state court decisions are not... 1988
Connie K. Haslam Indian Sovereignty: Confusion Prevails-california V. Cabazon Band of Mission Indians, 107 S Ct. 1083 (1987). 63 Washington Law Review 169 (January, 1988) The courts have failed to give the Indian tribes of the United States a straight answer on the boundaries of Indian sovereignty. The predominant issue before the courts is how to balance the disparate interests of the federal government, the states, and the tribes themselves. The courts have battled to balance the interests of each party involved... 1988
Jean Pendleton Iowa Mutual Insurance Co. V. Laplante and Diversity Jurisdiction in Indian Country: What If No Forum Exists? 33 South Dakota Law Review 528 (1987/1988) The United States Supreme Court, in Iowa Mutual Insurance Co. v. LaPlante, has decided that before a federal court can exercise diversity jurisdiction over causes of action arising in Indian Country, tribal court must first determine their own jurisdiction. While this important jurisdictional question has now been settled, the Supreme Court failed... 1988
Lee Herold Storey Leasing Indian Water off the Reservation: a Use Consistent with the Reservation's Purpose 76 California Law Review 179 (January, 1988) The extent of permissible Indian water use in the United States is determined by the Indian reserved rights' doctrine, pronounced in Winters v. United States. The Supreme Court there ruled that Indian water rights were impliedly reserved at the time of the reservation's creation for the benefit of the Indians, and for a use necessary to fulfill... 1988
Peggy Healy Lyng V. Northwest Indian Cemetery Protective Association: a Form-over-effect Standard for the Free Exercise Clause 20 Loyola University of Chicago Law Journal 171 (Fall, 1988) Even if we assume that . . . the G-O road will virtually destroy the Indians' ability to practice their religion . . . the Constitution simply does not provide a principle that could justify upholding respondents' legal claims. With that cavalier statement, the Supreme Court in Lyng v. Northwest Indian Cemetery Protective Association proceeded to... 1988
David H. Getches Management and Marketing of Indian Water: from Conflict to Pragmatism 58 University of Colorado Law Review 515 (Winter, 1988) Water remains the most vitally important resource of nearly all Indian tribes. It is the touchstone of Native American cultures, linking today's and tomorrow's Indians with their early fellow tribesmen who drank, fished, and drew irrigation water from the same waterways. The might and mystery of riversfrom the Big Horn to the Colorado, from the... 1988
Robert Laurence Martinez, Oliphant and Federal Court Review of Tribal Activity under the Indian Civil Rights Act 10 Campbell Law Review 411 (Summer, 1988) I. INTRODUCTION. 412 II. OVERRULING Oliphant. 415 III. OVERRULING Martinez. 427 A. An ICRA Plaintiff Must First Exhaust Her Tribal Remedies. 430 B. There Should Be a Meaningful Amount-In-Controversy Requirement. 432 C. Money Damages Should Not Be Recovered Against the Tribe. 433 D. Federal Court Review Should Be on the Tribal Court Record, If... 1988
H. Barry Holt Property Clause Regulation off Federal Lands: an Analysis, and Possible Application to Indian Treaty Rights 19 Environmental Law 295 (Winter, 1988) I. INTRODUCTION. 295 II. EXTERNAL REGULATION UNDER THE PROPERTY CLAUSE. 296 A. Generally. 296 1. Traditional Cases. 297 2. Traditional Challenges. 299 a. State Power. 300 b. Takings. 301 B. Regulatory Purposes. 302 1. Nuisance Abatement. 302 2. Protection of Federal Property. 303 3. Protection of Federal Purposes. 305 C. Application. 308 1.... 1988
Richard A. DuBey , Mervyn T. Tano , Grant D. Parker Protection of the Reservation Environment: Hazardous Waste Management on Indian Land 18 Environmental Law 449 (Spring, 1988) I. INTRODUCTION. 450 II. HAZARDOUS WASTE AND THE RESERVATION ENVIRONMENT. 453 A. The Reservation Environment. 453 B. The Resource Conservation and Recovery Act. 455 C. The Federal RCRA Management Program. 457 D. State RCRA Programs. 458 E. Hazardous Wastes and Indian Lands. 459 III. WASHINGTON DEPARTMENT OF ECOLOGY v. EPA: A CASE OF FIRST... 1988
Jill Norgren Protection of What Rights They Have: Original Principles of Federal Indian Law 64 North Dakota Law Review 73 (1988) I. INTRODUCTION. 74 II. LAW AND THE EARLY EUROPEANS IN THE NEW WORLD. 75 A. THE SPANISH. 76 B. THE DUTCH AND THE BRITISH. 78 III. REVOLUTIONARY AND TRANSITION YEARS. 79 IV. ENTER THE COURT: THE DEVELOPMENT OF DOCTRINE IN FLETCHER, WILSON, AND JOHNSON. 83 A. THE YAZOO CASE: FLETCHER V. PECK. 83 B. NEW JERSEY V. WILSON. 87 C. JOHNSON V. M'INTOSH:... 1988
  Sovereign Immunity-indian Tribal Sovereignty-tribes Not Immune from Suits Arising from Off-reservation Business Activity-padilla V. Pueblo of Acoma, 107 N.m. 174, 754 P.2d 845 (1988). 102 Harvard Law Review 556 (December, 1988) Indian tribes have enjoyed a quasi-sovereign status since the Supreme Court decision in Cherokee Nation v. Georgia in 1831. Chief Justice Marshall, describing the nature of this status, explained that, although the tribes are nations, they are domestic dependent nations, and their relationship to the national government resembles that of a... 1988
Debra L. Donahue Taking a Hard Look at Mitigation: the Case for the Northwest Indian Rule 59 University of Colorado Law Review 687 (Summer, 1988) Since its passage almost twenty years ago, the National Environmental Policy Act (NEPA, or the Act) has spawned countless lawsuits and administrative appeals and scores of articles. The target of much of the attention has been the adequacy of the environmental impact statement (EIS)the detailed statement which the Act requires federal agencies... 1988
Mark K. Ulmer The Legal Origin and Nature of Indian Housing Authorities and the Hud Indian Housing Programs 13 American Indian Law Review 109 (1988) In order to efficiently transform federal assistance into decent, safe, and sanitary homes for American Indians on Indian reservations, the Department of Housing and Urban Development (HUD) established and presently regulates a system whereby financial and technical assistance is provided to local Indian housing authorities (IHAs). An IHA may be... 1988
John A. Folk-Williams The Use of Negotiated Agreements to Resolve Water Disputes Involving Indian Rights 28 Natural Resources Journal 63 (Winter, 1988) Disputes about the nature of Indian rights in water resources are widespread throughout the western United States. Studies in 1982 and 1984 enumerated more than fifty cases in fourteen western states in which a wide variety of issues were in litigation. These issues include the quantification of Indian rights to both surface and groundwater,... 1988
Leanora A. Kovacs United States V. Cherokee Nation--indian Water Rights: Giving with One Hand and Taking with the Other 6 Pace Environmental Law Review 255 (Fall, 1988) In the United States v. Cherokee Nation of Oklahoma, the United States Supreme Court addressed whether the Cherokee Nation, having fee simple title to portions of the bed of the Arkansas River, should be paid just compensation for damages to sand and gravel interests caused by navigational improvements to the river. The Supreme Court held that the... 1988
Patricia Owen Who Is an Indian? Duro V. Reina's Examination of Tribal Sovereignty and Criminal Jurisdiction over Nonmember Indians 1988 Brigham Young University Law Review 161 (1988) Congress and the courts have grappled with Indian issues since the formation of our country. The difficulty of resolving Indian issues stems partially from the difference between what being an Indian' signifies to the Native American and what it signifies to Congress and to the courts. The determination of who is an Indian directly impacts the... 1988
Patricia Owen WHO IS AN INDIAN? DURO v. REINA'S EXAMINATION OF TRIBAL SOVEREIGNTY AND CRIMINAL JURISDICTION OVER NONMEMBER INDIANS 1988 Brigham Young University Law Review 161 (1988) Congress and the courts have grappled with Indian issues since the formation of our country. The difficulty of resolving Indian issues stems partially from the difference between what being an Indian' signifies to the Native American and what it signifies to Congress and to the courts. The determination of who is an Indian directly impacts the... 1988
Mark S. Cohen American Indian Sacred Religious Sites and Government Development: a Conventional Analysis in an Unconventional Setting 85 Michigan Law Review 771 (February, 1987) When the Lord saw that Moses had turned aside to look, he called to him out of the bush, Moses, Moses. And Moses answered, Yes, I am here. God said, Come no nearer; take off your sandals; the place where you are standing is holy ground. -- Exodus 3:1-6 [I]n the long run if the expansion is permitted, we will not be able successfully to teach... 1987
Edward J. Littlejohn , Leonard S. Rubinowitz Black Enrollment in Law Schools: Forward to the Past? 12 Thurgood Marshall Law Review 415 (Summer, 1987) For a hundred years after the first Black student entered an American law school in 1868, Blacks were barely visible in law schools. Starting in the late 1960s, they made modest gains in enrollment. Black representation in law school peaked within a decade, and leveled off by the mid-1970s. This enrollment plateau continued until the mid-1980s,... 1987
Dennis W. Arrow Contemporary Tensions in Constitutional Indian Law 12 Oklahoma City University Law Review 469 (Fall, 1987) Initially, it must be noted that American Indian Law is a unique amalgam of constitutional, common law, statutory, and international legal principles, resulting in the inevitable lack of success of attempts to excise the nonconstitutional from the strictly constitutional. In order to ameliorate this conundrum, those cases resulting in either... 1987
Frank Pommersheim Economic Development in Indian Country: What Are the Questions? 12 American Indian Law Review 195 (1987) Poverty in Indian country, particularly in South Dakota, continues to be substantial. Several reservation counties, such as Shannon County on the Pine Ridge Reservation, Buffalo County on the Crow Creek Reservation, Ziebach County on the Cheyenne River Reservation, and Todd County on the Rosebud Reservation, are among the poorest in the United... 1987
Catherine E. Pope Environmental Law-federal Indian Law-recent Developments-state of Washington, Department of Ecology V. United States Environmental Protection Agency 752 F.2d 1465 (9th Cir. 1985) 27 Natural Resources Journal 739 (Summer, 1987) The Ninth Circuit held that the Resource Conservation and Recovery Act which delegates to states the power to implement and enforce hazardous waste plans over persons within the state does not extend state power over Indian lands. For the past decade, the question of jurisdictional authority over environmental protection programs within Indian... 1987
Fred Unmack Equality under the First Amendment: Protecting Native American Religious Practices on Public Lands 8 Public Land Law Review 165 (1987) The First Amendment to the United States Constitution forbids Congress from making any law respecting an establishment of [a] religion or prohibiting the free exercise thereof. Like all United States citizens, Lative Americans are guaranteed the right to practice their religions free from governmental interference. Yet not until the recent... 1987
David L. Gregory Incremental Progress: a Study of American Indian Law 1987 Wisconsin Law Review 493 (1987) Professor Charles Wilkinson has provided a timely and scholarly legal analysis of the most disadvantaged population in the United States, the American Indians. His new book, American Indians, Time and the Law, is a through and thoughtful study. The depth of careful scholarship is immediately evident; the footnotes are nearly equal to the length of... 1987
Detlev Vagts, Robert A. Williams, Jr., University of Wisconsin Law School Member, Lumbee Indian Tribe Indian Rights--human Rights: Handbook for Indians on International Human Rights Complaint Procedures. Washington: Indian Law Resource Center, 1984. Pp. 129. $4. 81 American Journal of International Law 490 (April, 1987) With the emergence of the United Nations as a world forum for debating differing conceptions of fundamental values, the concept of human rights has come to eclipse the prior normative paradigms of Western legal and political discourse. From one perspective, Western efforts to focus the attention of international legal and political forums on human... 1987
Sharon J. Bell Indian Title Problems: a Survival Primer 1-OCT Probate and Property 30 (September/October, 1987) Like the Tar Baby, a dispute involving Indian land claims is sticky. Indian title problems can sometimes linger in an attorney's office for months or even years and involve time consuming bureaucratic procedures or costly federal litigation. For example, it took 35 years of litigation to determine the ownership of the Lete Kolvin allotment and its... 1987
  International Human Rights Standards-setting: the Case of Indigenous Peoples 81 American Society of International Law Proceedings 277 (April 8-11, 1987) The panel was convened on Friday, April 10, 1987, at 8:30 a.m., by the Chair, Maureen Davies. Professor Davies expressed the view that the topic of the panel concerned one of the most exciting and active areas of standards-setting in international human rights law at the time. The focus of discussion was devoted in particular to such core issues as... 1987
Lawrence B. Landman International Protection for American Indian Land Rights? 5 Boston University International Law Journal 59 (Spring, 1987) The American Indian's most valued possession is his land. From the moment English settlers debarked at Jamestown, Virginia, white men took Indian land. Two billion acres were taken from the time of the American Revolution until the end of the nineteenth century. By 1970, all Indian land acquired by white men had a value of $560 billion. Yet, a... 1987
Donald D. MacIntyre Quantification of Indian Reserved Water Rights in Montana: State ex Rel. Greely in the Footsteps of San Carlos Apache Tribe 8 Public Land Law Review 33 (1987) I. Introduction. 33 II. The Montana Cases at Issue in San Carlos Apache Tribe. 37 A. Procedural History. 37 B. The San Carlos Apache Tribe Decision. 39 C. The San Carlos Apache Tribe Dissents. 43 D. An Adherence to Prior Supreme Court Decisions. 45 III. State ex rel. Greely. 48 A. The Writ of Supervisory Control. 48 B. The State Constitutional... 1987
Donald D. MacIntyre QUANTIFICATION OF INDIAN RESERVED WATER RIGHTS IN MONTANA: STATE EX REL. GREELY IN THE FOOTSTEPS OF SAN CARLOS APACHE TRIBE 8 Public Land Law Review 33 (1987) I. Introduction. 33 II. The Montana Cases at Issue in San Carlos Apache Tribe. 37 A. Procedural History. 37 B. The San Carlos Apache Tribe Decision. 39 C. The San Carlos Apache Tribe Dissents. 43 D. An Adherence to Prior Supreme Court Decisions. 45 III. State ex rel. Greely. 48 A. The Writ of Supervisory Control. 48 B. The State Constitutional... 1987
Steven M. Christenson Regulatory Jurisdiction over Non-indian Hazardous Waste in Indian Country 72 Iowa Law Review 1091 (May, 1987) Hazardous waste presents a serious danger to the life and health of the 700,000 people living on Indian land. Although the Resource Conservation and Recovery Act of 1976 (RCRA) creates a comprehensive program for hazardous waste management, it fails to state how to implement a hazardous waste management program in Indian country. Under RCRA,... 1987
Charles K. Verhoeven South Carolina V. Catawba Indian Tribe: Terminating Federal Protection with 'Plain' Statements 72 Iowa Law Review 1117 (May, 1987) The Indian Nonintercourse Act (Nonintercourse) provides that no land transaction between any tribe of Indians and another entity shall be valid without the consent of the United States. Over the past fifteen years, several suits have arisen under this Act, or its common-law precursor, in which Indian tribes have argued that a past land transaction... 1987
Linda P. Reppert State Taxation of Indian Oil and Gas Leases: Montana V. Blackfeet Tribe of Indians 40 Tax Lawyer 459 (Winter, 1987) In Montana v. Blackfeet Tribe of Indians, the Supreme Court held that Montana could not tax certain royalty interests generated from oil and gas leases on Indian land even though non-Indian lessees paid the tax. This decision extends the traditional state tax exemption granted to Indian tribes and Indian individuals by broadening the exemption to... 1987
Gary Milhollin Stopping the Indian Bomb 81 American Journal of International Law 593 (July, 1987) South Asia is now poised for a nuclear arms race. Pakistan has learned how to make enriched uraniumthe material that destroyed Hiroshima and has been buying the electronic switches and hollow steel spheres used for implosion. It has tested, successfully, an implosion bomb with a dummy core. On the Indian side, Prime Minister Rajiv Gandhi has been... 1987
Shannon D. Work The Alaska Native Claims Settlement Act: an Illusion in the Quest for Native Self-determination 66 Oregon Law Review 195 (1987) [I]f they sell their stocks they would be selling their culture. They would be selling their land, their heritage. They would be left with nothing . . . because, after we lose our culture and our heritage, what else do we have? THE United States government's policy toward Native Americans appears, on the surface, to be evolving in a meaningful,... 1987
Robert A. Williams, Jr. The Hermeneutics of Indian Law 85 Michigan Law Review 1012 (April/May, 1987) Professor Charles F. Wilkinson, author of a new book on federal Indian law entitled American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy, is already one of the field's most accomplished and widely cited scholars. Besides numerous influential law review articles and coauthorship of a leading law school casebook,... 1987
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
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