| Author | Title | Citation | Summary | Year |
| Hope M. Babcock |
A CIVIC-REPUBLICAN VISION OF "DOMESTIC DEPENDENT NATIONS" IN THE TWENTY-FIRST CENTURY: TRIBAL SOVEREIGNTY RE-ENVISIONED, REINVIGORATED, AND RE-EMPOWERED |
2005 Utah Law Review 443 (2005) |
I. Introduction. 444 II. Sovereignty. 448 III. Tribal Sovereignty. 455 A. Sources of Tribal Sovereignty. 457 1. Treaties. 457 2. Inherent Sovereignty. 469 B. The Shifting Tectonic Plates of Tribal Sovereignty. 485 1. The Importance of Tribal Land. 486 2. Debilitating Judicial Doctrines. 497 3. Tribal Sovereignty Today: A Glass Half Full or Half... |
2005 |
| Olympia Duhart |
A Native Son's Defense: Bigger Thomas and Diminished Capacity |
49 Howard Law Journal 61 (Fall 2005) |
What happens to a dream deferred? Does it dry up like a raisin in the sun? Or fester like a sore -- And then run? Does it stink like rotten meat? Or crust and sugar over -- like a syrupy sweet? Maybe it just sags like a heavy load. Or does it explode? Alone in a bedroom with a drunk, young white woman, Bigger Thomas panics as he senses the approach... |
2005 |
| Elizabeth Kolsky |
A Note on the Study of Indian Legal History |
23 Law and History Review 703 (Fall, 2005) |
In his commentary, The Historiography of Difference, Kunal Parker hits on two crucial and interrelated themes that form the framework for debates in modern South Asian history: colonialism and subaltern agency. In this short response to Parker's comment, I address both of these issues and also offer some insights about methodological obstacles in... |
2005 |
| Kristen A. Carpenter |
A Property Rights Approach to Sacred Sites Cases: Asserting a Place for Indians as Nonowners |
52 UCLA Law Review 1061 (April, 2005) |
Although the Free Exercise Clause prohibits governmental interference with religion, American Indians have been unsuccessful in challenging government actions that harm tribal sacred sites located on federal public lands. The First Amendment dimensions of these cases have been well studied by scholars, but this Article contends that it is also... |
2005 |
| Erik B. Bluemel |
Accommodating Native American Cultural Activities on Federal Public Lands |
41 Idaho Law Review 475 (2005) |
In recent years significant indigenous peoples' movements have arisen in many countries throughout the world. This international indigenous politicization has made it easy to overlook the plight of indigenous peoples, or Indians, within United States boundaries. The colonization of Native American lands in the United States has resulted in the... |
2005 |
| Alan E. Brown |
Ace in the Hole: Land's Key Role in Indian Gaming |
39 Suffolk University Law Review 159 (2005) |
Take a Chance, Make it Happen Pop the Cork, Fingers Snappin' Spin the Wheel, Round and Round We Go Life is Good, Life is Sweet Grab Yourself a Front Row Seat Let's Meet and Have a Ball Let's Live for the Wonder of it All Meet me at Foxwoods! Indian gaming is big business. In 2004, Indian gaming facilities grossed over $19.4 billion and, since... |
2005 |
| Paul V.M. Flesher |
Administration of Native American Sacred Space on Federal Land: the Approach of "Equal Treatment" |
28-DEC Wyoming Lawyer 28 (December, 2005) |
One of the ongoing challenges in Wyoming has been balancing the rights of Native American citizens with those of the non-native population. In recent decades, the focus has been on how to accommodate the desire of American Indians to worship at traditional sacred sites. The most well-known of these sites have been Devils Tower and the Big Horn... |
2005 |
| Winnifred Sullivan |
Advocating Religion on Public Lands: Native American Practice or Buddhist Sermon? |
39 Law and Society Review 689 (September, 2005) |
Lloyd Burton's Worship and Wilderness is a multifaceted book. It is at once a critique of the U.S. constitutional religious free exercise doctrine, a plea for environmental stewardship, a cry for justice for native peoples, and a Buddhist sermon. Sometimes these various facets are in tension with one another. Indeed, that is the attraction of this... |
2005 |
| Jessica Lynn Clark |
Afge V. United States: the D.c. Circuit's Preferential Treatment of the Native American Preference in Government Contract Awards |
34 Public Contract Law Journal 379 (Winter, 2005) |
I. Introduction. 380 II. Background. 381 A. Statutory Background. 381 1. 2000 Department of Defense Appropriations Act Section 8014(3). 381 2. Small Business Act Section 8(a). 381 3. Federal Acquisition Regulation Subchapter D. 382 B. Federal Indian Law. 382 C. Key Case Law Precedent. 383 1. Morton v. Mancari. 384 2. Washington v. Confederated... |
2005 |
| Stephen Colt |
Alaska Natives and the "New Harpoon": Economic Performance of the Ancsa Regional Corporations |
25 Journal of Land, Resources, and Environmental Law 155 (2005) |
Why do some countries (or regions) grow rich, while others remain poor? This is the central question asked by students of economic development. Lacking the ability to conduct controlled experiments, social scientists must draw inferences from such natural experiments as history provides. The Alaska Native Claims Settlement Act of 1971 (ANCSA) is... |
2005 |
| Ezra Rosser |
Ambiguity and the Academic: the Dangerous Attraction of Pan-indian Legal Analysis |
119 Harvard Law Review Forum 141 (December, 2005) |
Professor Philip Frickey's insightful (Native) American Exceptionalism in Federal Public Law eloquently calls upon the Court to reject the siren of seeming coherence; yet his academic tour de force ironically rests upon the same false synthesis and simplification of the varied tribal experiences into a shared set of digestible legal categories.... |
2005 |
| William F. Bacon |
American Indian Gaming in Idaho |
48-JAN Advocate 14 (January, 2005) |
Many years ago the federal government realized it could not honor its financial obligations to tribes made in treaties, and that its efforts to do so have provided a legacy of poverty. These failings are reflected in Idaho today. Unemployment on Indian reservations in Idaho can exceed 70%. More than 50% of Indians living on reservations in Idaho... |
2005 |
| |
American Indian Law -- Tribal Court Civil Jurisdiction -- Ninth Circuit Holds That Tribal Courts Lack Subject Matter Jurisdiction over Products Liability Suits Arising on Tribal Land. -- Ford Motor Co. V. Todecheene, 394 F.3d 1170 (9th Cir. 2005) |
118 Harvard Law Review 2469 (May, 2005) |
For the last seventy years, federal courts have struggled to determine the appropriate scope of American Indian tribal courts' jurisdiction in view of competing state interests. Since Congress passed the Indian Reorganization Act of 1934 --which reversed the prior federal policy of aggressive allotment and assimilation and instead sought to... |
2005 |
| Clay R. Smith |
American Indian Tribes and the Constitution |
48-JAN Advocate 19 (January, 2005) |
Almost 120 years ago in United States v. Kagama, the Supreme Court described the relationship of Indian tribes to the United States as an anomalous one, and of a complex character. The issue in Kagama was Congress' authority to enact what is now known as the Major Crimes Act. In the course of concluding that Congress possessed the requisite... |
2005 |
| Lawrence R. Baca |
American Indians, the Racial Surprise in the 1964 Civil Rights Act: They May, More Correctly, Perhaps, Be Denominated a Political Group |
48 Howard Law Journal 971 (Spring 2005) |
In one of the most seminal cases involving American Indians, the Supreme Court determined whether cases involving Native Americans have original jurisdiction in the U.S. Supreme Court because Indian tribes are constitutionally mandated foreign states. The opinion authored by Chief Justice Marshall, declared that American Indian tribes were not... |
2005 |
| Kirk Albertson |
Applying Twenty-five Years of Experience: the Iowa Indian Child Welfare Act |
29 American Indian Law Review 193 (2004-2005) |
Let us put our minds together and see what kind of life we can build for our children. -Sitting Bull, Hunkpapa Sioux On May 30, 2003, Iowa Governor Tom Vilsack signed into law the Iowa Indian Child Welfare Act. The purpose of the Act is to supplement the Federal Indian Child Welfare Act of 1978 (ICWA), which provides minimum federal standards for... |
2005 |
| John J. Goodman |
Arizona V. California Iii: Res Judicata, Collateral Estoppel, and Indian Water Rights |
19 Journal of Natural Resources & Environmental Law 273 (2004-2005) |
Arizona v. California involved the latest chapter in the nearly fifty year dispute between the Quechan Indian Tribe and several western states over water rights to the Colorado River. Descending from the Rocky Mountains, the river travels southwest through Colorado, Utah, and Arizona, taking in tributaries from Wyoming, Nevada, and New Mexico... |
2005 |
| Larry echohawk |
Balancing State and Tribal Power to Tax in Indian Country |
14-JAN Journal of Multistate Taxation and Incentives 22 (January, 2005) |
Neither state nor tribal governments should unilaterally impose taxes without carefully studying whether proposed new taxes are reasonably necessary to provide essential governmental services to the affected community. The 57th Idaho Legislature faced the daunting task of balancing a state budget suffering from a $200 million shortfall in revenue... |
2005 |
| David Selden, Monica Martens |
Basic Indian Law Research Tips--part I: Federal Indian Law |
34-MAY Colorado Lawyer 43 (May, 2005) |
Justice William C. Canby, Jr., in American Indian Law in a Nutshell, defines federal Indian law as the law dealing with the status of the Indian tribes and their special relationship to the federal government, with all of the attendant consequences for the tribes and their members, the states and their citizens, and the federal government. Indian... |
2005 |
| David Selden, Monica Martens |
Basic Indian Law Research Tips--part Ii: Tribal Law |
34-AUG Colorado Lawyer 115 (August, 2005) |
This two-part article seeks to provide practical tips for researchers of Indian law. Part I of this article, which was published in the May 2005 issue, focused on federal Indian law research. This Part II covers tribal law research. In 1997, U.S. Supreme Court Justice Sandra Day O'Connor made a reference to the importance of tribal law, stating:... |
2005 |
| William Bradford |
Beyond Reparations: an American Indian Theory of Justice |
66 Ohio State Law Journal L.J. 1 (2005) |
It is perhaps impossible to overstate the magnitude of the human injustice perpetrated against American Indian people: indeed, the severity and duration of the harms endured by the original inhabitants of the U.S. may well rival those suffered by any other group past or present, domestic or international. While financial reparations for certain... |
2005 |
| Stacy L. Leeds |
BY EMINENT DOMAIN OR SOME OTHER NAME: A TRIBAL PERSPECTIVE ON TAKING LAND |
41 Tulsa Law Review 51 (Fall 2005) |
Private Property . . . is a Creature of Society, and is subject to the Calls of that Society, whenever its Necessities shall require it, even to its last Farthing. Benjamin Franklin Throughout the United States there is a backlash to recent eminent domain decisions. People are dismayed their government has the power to force landowners to surrender... |
2005 |
| Von Russell Creel |
Challenge and Opportunity: the First Year of the United States Court for the Indian Territory |
30 Oklahoma City University Law Review 295 (Summer 2005) |
As discussed in a previous article, the legislation creating the United States Court for the Indian Territory was signed by President Grover Cleveland in the waning days of his first administration. Cleveland was succeeded March 4, 1889, as the nation's chief executive by Benjamin Harrison of Indiana. Harrison quickly called a special session of... |
2005 |
| Milka Castro Lucic, Universidad de Chile |
Challenges in Chilean Intercultural Policies: Indigenous Rights and Economic Development |
28 PoLAR: Political and Legal Anthropology Review 112 (May, 2005) |
The article analyzes the effects of social, economic, and political changes that the Chilean nation has imposed on indigenous people in the last thirty years. The politics of the socialist governments, the military dictatorship, and the Concertación de Partidos por la Democracia coalition have marked advances and setbacks in the fight for the... |
2005 |
| Caryn Trombino |
Changing the Borders of the Federal Trust Obligation: the Urban Indian Health Care Crisis |
8 NYU Journal of Legislation and Public Policy 129 (2004-2005) |
Lured by the promise of jobs, education, and economic security, an estimated 100,000 to 160,000 American Indians moved off reservations and into urban areas between 1953 and 1972 via the urban relocation efforts of Commissioner of Indian Affairs Dillon Myer. Native Americans slowly but steadily migrated from rural reservations to urban areas... |
2005 |
| Sarah Krakoff |
City of Sherrill V. Oneida Indian Nation of New York: a Regretful Postscript to the Taxation Chapter in Cohen's Handbook of Federal Indian Law |
41 Tulsa Law Review Rev. 5 (Fall 2005) |
It is a tough time to be teaching American Indian law. As a professor, one tries to maintain at least some semblance of respect for the various branches of government, hoping to encourage serious examination of divisive issues of law and policy. Yet, I know I am not alone in trying desperately to avoid lapsing into unseemly cynicism, bordering on... |
2005 |
| David S. Case |
Commentary on Sovereignty: the Other Alaska Native Claim |
25 Journal of Land, Resources, and Environmental Law 149 (2005) |
The Alaska Native Claims Settlement Act (ANCSA or Claims Act) ignored the Alaska Native claim to sovereignty. It is not clear why, but it is clear that Congress simply did not deal with the issue in the 1971 settlement. The word tribe is used only once in ANCSA and then only as part of the definition of Native village. The extinguishment of... |
2005 |
| Leslie Sturgeon |
Constructive Sovereignty for Indigenous Peoples |
6 Chicago Journal of International Law 455 (Summer 2005) |
Elaborating on current understandings of sovereignty seems, on its face, to be an exercise in futility. Although several international documents address the question of who is entitled to status as a sovereign entity, a realistic approach suggests that the only rights guaranteed to a would-be sovereign entity are those that it can back by force... |
2005 |
| Rachana Desai |
Copyright Infringement in the Indian Film Industry |
7 Vanderbilt Journal of Entertainment Law & Practice 259 (Spring, 2005) |
On July 7, 1896, India's first cinematographic film was shown in Mumbai. Today, India's mammoth film industry produces more movies than any other country in the world and employs over two million people. In 2001, India's entertainment industry (which includes film, music, television, radio and live entertainment) was one of the fastest growing... |
2005 |
| Yanira Reyes Gil |
Critical Conversations on Nationalism, Self-determination, Indigenous People, Globalization and Colonialism: Reflections on the South-north Exchange, 2004 & 2005 |
17 Florida Journal of International Law xiii (December, 2005) |
The relationship between the South and the North is complicated, problematic, conflictive, and unequal. But it can also be creative, dynamic, insightful, and, ideally, respectful. The reasons for these adjectives are many, most of them related to sentiments of historical distrust and resentment caused by years, centuries of colonialism,... |
2005 |
| Charles H. Wilson III |
Cropped Ears from Bruised Pride--the Early Law of Adultery among Creek Indians |
13 Journal of Southern Legal History Hist. 1 (2005) |
William Bartram, a naturalist traveling in the Southeastern United States during the eighteenth century, recorded many fascinating observations involving flora and fauna. However, his most gripping narrative involved the birds and the bees. Bartram's friend, Mr. T_y, trader of Mucclasse, a Creek Indian village in present-day Elmore County,... |
2005 |
| Jeremy Firestone , Jonathan Lilley , Isabel Torres de Noronha |
Cultural Diversity, Human Rights, and the Emergence of Indigenous Peoples in International and Comparative Environmental Law |
20 American University International Law Review 219 (2005) |
A fundamental change is occurring in the way indigenous peoples' rights, aspirations, and knowledge influence international environmental law. Whereas historically, international environmental law was state-centered and did not concern the rights and the role of indigenous communities regarding environmental issues, recently a number of debates... |
2005 |
| S. James Anaya |
Divergent Discourses about International Law, Indigenous Peoples, and Rights over Lands and Natural Resources: Toward a Realist Trend |
16 Colorado Journal of International Environmental Law and Policy 237 (Spring 2005) |
In this article renowned scholar S. James Anaya analyzes the divergent assessments of international law's treatment of indigenous peoples' demands to lands and natural resources. The author explores several strains of arguments that have been advanced within this debate, including state-centered arguments and human rights-based arguments. The... |
2005 |
| Dana Smith |
Doctrinal Anachronism?: Revisiting the Practicably Irrigable Acreage Standard in Light of International Law for the Rights of Indigenous Peoples |
22 Arizona Journal of International & Comparative Law 691 (Fall, 2005) |
If one may mark the turn of the 20th century by the massive expropriation of Indian lands, then the turn of the 21st century is the era when the Indian tribes risk the same fate for their water resources. The year 2008 will mark the 100th anniversary of the Winters v. United States decision and its implicit promise to protect the water resource... |
2005 |
| Mark J. Cowan |
Double Taxation in Indian Country: Unpacking the Problem and Analyzing the Role of the Federal Government in Protecting Tribal Governmental Revenues |
2 Pittsburgh Tax Review 93 (Spring, 2005) |
When the white man discovered this country Indians were running it. No taxes, no debt . . . . White man thought he could improve on a system like this. We have how many taxes? Makes you want to vote Republican. The taxation of business conducted on American Indian reservations is complex, confusing, and, at times, unpredictable. There are at... |
2005 |
| Alex Tallchief Skibine |
Dualism and the Dialogic of Incorporation in Federal Indian Law |
119 Harvard Law Review Forum 28 (December, 2005) |
Since 1975, the Court's record on Indian issues has not been favorable to Indian tribes, to say the least. The Court has systematically limited the inherent sovereign powers possessed by tribes, while at the same time increasing the power states can exercise within Indian reservations. Professor Frickey argues that in the last thirty years, the... |
2005 |
| Kevin J. Worthen |
Eagle Feathers and Equality: Lessons on Religious Exceptions from the Native American Experience |
76 University of Colorado Law Review 989 (Fall 2005) |
The legality and propriety of exempting religiously motivated conduct from otherwise applicable legal norms is the subject of ongoing scholarly, judicial, and legislative debate. The issue is particularly thorny when it arises in a legal system deeply committed to the concept of equality. The Eagle Protection Act, which exempts Native Americans... |
2005 |
| Francis Paul Prucha, S.J. |
Education of American Indians in the Age of Brown V. Board of Education |
89 Marquette Law Review 87 (Fall 2005) |
I have been asked to comment briefly on the impact of Brown v. Board of Education upon the American Indians. The Indians, after all, can be considered a minority within the nation who have faced discrimination and oppression and who, in some ways, have a history parallel to that of African Americans. We may be forgiven if we are tempted to ask in... |
2005 |
| |
Energy Facilites and Siting |
2005 ABA Environment, Energy, and Resources Law: The Year in Review 178 (2005) |
On August 8, 2005, the Energy Policy Act of 2005 (Energy Policy Act) was signed into law by President Bush. A summary of some key provisions relating to energy facilities and siting is provided below. Among the key challenges that Congress sought to address in the Energy Policy Act were the difficulties associated with siting of high-voltage... |
2005 |
| S. James Anaya, University of Arizona, Rogers College of Law |
European Conquest and the Rights of Indigenous Peoples: the Moral Backwardness of International Society. By Paul Keal. Cambridge, New York: Cambridge University Press, 2003. Pp. Ix, 258. Index. $70, £45, Cloth; $26.99, £16.99, Paper |
99 American Journal of International Law 306 (January, 2005) |
European Conquest and the Rights of Indigenous Peoples is one of several recently published works that explore the place of indigenous peoples within international law and politics. Written by Paul Keal, a fellow of the Research School of Pacific and Asian Studies at the Australian National University, it draws upon history, international relations... |
2005 |
| Kristoffer P. Kiefer |
Exercising Their Rights: Native American Nations of the United States Enhancing Political Sovereignty Through Ratification of the Rome Statute |
32 Syracuse Journal of International Law and Commerce 345 (Spring 2005) |
The federal government officially recognizes 562 tribal governments within the United States. Combined, these Native American nations occupy 55.7 million acres of land, which the United States holds in trust for their use. A number of factors, including the size of these tribes, their history, and the complexity of the Native American experience... |
2005 |
| Laverne F. Hill |
Family Group Conferencing: an Alternative Approach to the Placement of Alaska Native Children under the Indian Child Welfare Act |
22 Alaska Law Review 89 (June, 2005) |
The Indian Child Welfare Act establishes a cultural safeguard for Alaska Native children caught up in the child welfare system by requiring professionals to make active efforts toward reunifying the child with family members and their tribe. Complying with this standard has been a challenge because the adversarial system governing the child... |
2005 |
| Kaighn Smith, Jr. |
Federal Courts, State Power, and Indian Tribes: Confronting the Well-pleaded Complaint Rule |
35 New Mexico Law Review Rev. 1 (Winter, 2005) |
In Inyo County v. Paiute-Shoshone Indians, the Supreme Court held that an Indian tribe could not bring an action under 42 U.S.C. § 1983 for damages against county officials for the wrongful execution of a state search warrant on tribal property and for injunctive relief to prevent the officials from executing additional threatened search warrants.... |
2005 |
| G. William Rice |
Federal Indian Law Cases in the Supreme Court's 2004-2005 Term |
41 Tulsa Law Review 341 (Winter 2005) |
Lesson One: How to enforce a valid contract Lesson Two: How to enforce a void contract The highest responsibility of a judge is to promote confidence in our legal system. When an opinion ignores recent authority . . ., attacks the veracity of prior judicial opinions, and cites inapposite precedent in order to achieve a specific outcome, public... |
2005 |
| George Felos |
Felos on Schiavo |
35 Stetson Law Review Rev. 9 (Fall 2005) |
Thank you all for coming. Thank you, Rebecca, for the introduction. I have twenty minutes to discuss the implications of the Schiavo case! I think it's fair to say that in taking this case, when Mr. Schiavo walked into my office eight years ago, I wouldn't have had the slightest idea that I'd now be standing up here while the case was still... |
2005 |
| Alyssa A. Vegter |
Forsaking the Forests for the Trees: Forestry Law in Papua New Guinea Inhibits Indigenous Customary Ownership |
14 Pacific Rim Law & Policy Journal 545 (April, 2005) |
Illegal logging in the tropical forests of Papua New Guinea is one of the greatest threats to the forests and indigenous people of this island nation. Increasing pressure from the commercial logging industry, legislation that restrains customary ownership, and an unclear legal basis for this ownership subjects the indigenous people of... |
2005 |
| Christine Zuni Cruz |
Four Questions on Critical Race Praxis: Lessons from Two Young Lives in Indian Country |
73 Fordham Law Review 2133 (April, 2005) |
The Critical Race Lawyering Symposium in New York City brings me from Albuquerque, New Mexico. As I travel the day before the symposium, I reflect on the amount of time it will take. I leave Albuquerque at 8:23 a.m. and I am scheduled to arrive in New York City at 4:05 p.m., via Chicago. Given the two-hour time difference between the East Coast and... |
2005 |
| Devon Knowles |
From Chicken to Chignik: the Search for Jury Impartiality in Rural Alaska Native Communities |
37 Columbia Human Rights Law Review 235 (Fall 2005) |
On August 16, 1969, the villagers of Chignik, Alaska had just reached the end of their fishing season and were engaged in a village celebration that, for many, included prolonged and heavy drinking. Prosecutors for the state later alleged that it was in the midst of this celebration that Cloyd Alvarado lured his fourteen-year-old sister-in-law to a... |
2005 |
| Dr. Lisa Strelein |
From Mabo to Yorta Yorta: Native Title Law in Australia |
19 Washington University Journal of Law and Policy 225 (2005) |
In more than a decade since Mabo v. Queensland II's recognition of Indigenous peoples' rights to their traditional lands, the jurisprudence of native title has undergone significant development. The High Court of Australia decisions in Ward and Yorta Yorta in 2002 sought to clarify the nature of native title and its place within Australian property... |
2005 |
| Donald Warne |
Genetics Research in American Indian Communities: Sociocultural Considerations and Participatory Research |
45 Jurimetrics Journal 191 (Winter, 2005) |
Genetics research has the potential to improve health care. American Indians (AIs) suffer from significant health disparities, including significantly higher incidence and prevalence of preventable diseases like diabetes, alcoholism, and their complications. Underfunding of health programs, including the Indian Health Service, and lower... |
2005 |