AuthorTitleCitationSummaryYear
David S. Johnston The Native American Plight: Protection and Preservation of Sacred Sites 8 Widener Law Symposium Journal 443 (2002) A wee child toddling in a wonder world, I prefer to their dogma my excursions into the natural gardens where the voice of the Great Spirit is heard in the twittering of birds, the rippling of mighty waters, and the sweet breathing of flowers. Freedom of religion drove thousands of Europeans to the New World, but to this date our society still... 2002
Lindsay Glauner The Need for Accountability and Reparation: 1830-1976 the United States Government's Role in the Promotion, Implementation, and Execution of the Crime of Genocide Against Native Americans 51 DePaul Law Review 911 (Spring 2002) The opposite of love is not hate; it's indifference. The opposite of art is not ugliness; it's indifference. The opposite of faith is not heresy; it's indifference. The opposite of life is not death; it's indifference. Because of indifference, one dies before one actually dies. Elie Wiesel. On September 8, 2000, the head of the Bureau of Indian... 2002
Andrea M. Seielstad The Recognition and Evolution of Tribal Sovereign Immunity under Federal Law: Legal, Historical, and Normative Reflections on a Fundamental Aspect of American Indian Sovereignty 37 Tulsa Law Review 661 (Spring 2002) It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the union. [Indian tribes are] distinct, independent... 2002
Andrea M. Seielstad THE RECOGNITION AND EVOLUTION OF TRIBAL SOVEREIGN IMMUNITY UNDER FEDERAL LAW: LEGAL, HISTORICAL, AND NORMATIVE REFLECTIONS ON A FUNDAMENTAL ASPECT OF AMERICAN INDIAN SOVEREIGNTY 37 Tulsa Law Review 661 (Spring 2002) It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the union. [Indian tribes are] distinct, independent... 2002
Claudeen Bates Arthur The Role of the Tribal Attorney 34 Arizona State Law Journal 21 (Spring, 2002) My name is Claudeen Bates Arthur. That is what they call me, but who I really am is a Tsenjikini woman. My fathers are Naaneesht'ezhi Tachiinii and my grandparents on my father's side are Kinyaa'aanii and on my mother's side are Naakai. That is who I really am. I also am the grandmother of eight grandsons and only one granddaughter. I tell you this... 2002
Kathleen A. Kannler The Struggle among the States, the Federal Government, and Federally Recognized Indian Tribes to Establish Water Quality Standards for Waters Located on Reservations 15 Georgetown International Environmental Law Review 53 (Fall, 2002) I. L2-3,T3Introduction 54 II. L2-3,T3The Authority of the Tribes and the Federal Government to Control the Regulation of Water Quality on Reservations 55 A. The Tribes' Inherent Authority to Set Water Quality Standards and Regulate Their Members' Conduct that Affects the Reservations' Water Quality. 55 B. Federal Legislation and Treaties: The... 2002
Dean B. Suagee The Supreme Court's "Whack-a-mole" Game Theory in Federal Indian Law, a Theory That Has No Place in the Realm of Environmental Law 7 Great Plains Natural Resources Journal 90 (Fall 2002) I. A Short Explanation of the Court's Whack-a-Mole Game Theory. 97 A. The General Proposition of Montana v. United States. 97 B. The Whack-a-Mole Line of Cases. 99 C. The 2001 Decisions. 102 1. Atkinson Trading Company, Inc. v. Shirley. 102 2. Nevada v. Hicks. 104 D. The Importance of the Sweeping Premise. 105 II. The Court's Disregard for... 2002
Ratna Kapur The Tragedy of Victimization Rhetoric: Resurrecting the "Native" Subject in International/post-colonial Feminist Legal Politics 15 Harvard Human Rights Journal J. 1 (Spring, 2002) Through traveling to other people's worlds we discover that there are worlds in which those who are the victims of arrogant perception are really subjects, lively beings, constructors of vision even though in the mainstream construction they are animated only by the arrogant perceiver and are pliable, foldable, file-awayable, classifiable.... 2002
Kathryn R.L. Rand There Are No Pequots on the Plains: Assessing the Success of Indian Gaming 5 Chapman Law Review 47 (Spring 2002) We had tried poverty for 200 years, so we decided to try something else. Ray Halbritter was referring to his own tribe, the Oneida Indian Nation of New York, but the sentiment might have applied to each of the nearly 150 tribes that decided to pursue casino-style gaming during the 1990s as a means of tribal economic development. For the last... 2002
Robert N. Clinton There Is No Federal Supremacy Clause for Indian Tribes 34 Arizona State Law Journal 113 (Spring, 2002) They say we have been here before and made an alliance. The Dutch, indeed, say we are brothers and are joined together with chains, but that lasts only as long as we have beavers. After that we are no longer thought of, but much will depend upon it when we shall need each other. [They thereupon gave two beavers.] They say, the alliance which was... 2002
Robert N. Clinton THERE IS NO FEDERAL SUPREMACY CLAUSE FOR INDIAN TRIBES 34 Arizona State Law Journal 113 (Spring, 2002) They say we have been here before and made an alliance. The Dutch, indeed, say we are brothers and are joined together with chains, but that lasts only as long as we have beavers. After that we are no longer thought of, but much will depend upon it when we shall need each other. [They thereupon gave two beavers.] They say, the alliance which was... 2002
John H. Mansfield Thirty-five Years under the Indian Constitution 5 Green Bag 311 (Spring 2002) IN 1966, SIXTEEN YEARS after the Indian Constitution came into force, Granville Austin published The Indian Constitution: Cornerstone of a Nation. This book was a study of the work of the Constituent Assembly and of early experiences under the Constitution in independent India. Because of the care with which the author did his research and the... 2002
David Matheson Tribal Sovereignty: Preserving Our Way of Life 34 Arizona State Law Journal 15 (Spring, 2002) Thank you everybody. It's good to be here. When I was looking at the speakers' panel that I was going to be on, I couldn't help but notice that it was all attorneys. I started trying to think of what I was going to talk about, trying to predict what the others were going to talk about, and that's why I thought I'd talk more on the cultural side.... 2002
Robert B. Porter - Odawi Two Kinds of Indians, Two Kinds of Indian Nation Sovereignty: a Surreply to Professor Lavelle 11 Kansas Journal of Law & Public Policy 629 (Spring, 2002) If you can free your mind, the body will follow. - Morpheus I. INTRODUCTION John LaVelle, my colleague at the University of South Dakota, graciously took up the task of commenting on my article arguing against the increasing practice of American Indians to self-identify as, and to exercise the political rights of, American citizens. Professor... 2002
Jeffrey C. Honaker United States V. Cleveland Indians: Fica and Futa Taxes V. the Social Security Act - Why Have Different Definitions for Identical Language? 17 Akron Tax Journal 99 (2002) The nation should have a tax system that looks like someone designed it on purpose. William Simon The Cleveland Indians were set to face off against the Internal Revenue Service in the 2001 World Series of Taxation. This meeting would not be their first. The parties battled in both 1999 and 2000 where the Indians, almost effortlessly, disposed of... 2002
Fergus MacKay Universal Rights or a Universe unto Itself? Indigenous Peoples' Human Rights and the World Bank's Draft Operational Policy 4.10 on Indigenous Peoples 17 American University International Law Review 527 (2002) INTRODUCTION. 528 A. The World Bank and Human Rights: International Concern. 529 B. Rights-Based Approach to Development. 533 C. International Attention to Indigenous Peoples' Human Rights. 535 I. DEVELOPMENT AND HUMAN RIGHTS: THE ROLE AND ATTITUDE OF THE WORLD BANK. 539 II. DOES THE BANK HAVE A LEGAL OBLIGATION TO RESPECT HUMAN RIGHTS?. 542 A. The... 2002
Joshua Briones We Want to Believe Too: the Irfa and Indigenous Peoples' Right to Freedom of Religion 8 U.C. Davis Journal of International Law and Policy 345 (Spring 2002) I. The IRFA of 1998. 347 A. The IRFA's Functions. 347 B. The President's Powers Under the IRFA. 348 II. The Case of the U'wa People. 349 A. The U'wa People. 349 B. Indifference to the U'wa People's Religious Beliefs. 350 C. U.S. Foreign Policy Toward the U'wa People. 352 III. First Amendment Jurisprudence. 352 A. The Smith Decision. 352 B. The... 2002
Nicholas K. Rohner , Raj Mehta Winner, Best Appellate Brief in the 2001 Native American Law Student Association Moot Court Competition 26 American Indian Law Review 287 (2001-2002) I. Whether the ESA applies to the CTCR's exercise of its treaty-reserved fishing rights when there is no clear evidence on the face of the Act, in the Act's legislative history, or in the surrounding circumstances that indicates Congress intended for the ESA to abrogate Indian treaty rights. II. Whether the NMFS should be required to first impose... 2002
Frank Shockey "INVIDIOUS" AMERICAN INDIAN TRIBAL SOVEREIGNTY: MORTON V. MANCARI CONTRA ADARAND CONSTRUCTORS, INC., V. PENA, RICE V. CAYETANO, AND OTHER RECENT CASES 25 American Indian Law Review 275 (2000-2001) To import generic equal protection theories . . . into federal Indian law constitutes an error of significant magnitude, for it confuses a puzzling, conceptually intractable, and little-understood corner of public law with its mainstream. Professor Philip Frickey, among other commentators, has expressed concern about the continuing viability of... 2001
Lucy A. Curry A CLOSER LOOK AT SANTA CLARA PUEBLO V. MARTINEZ: MEMBERSHIP BY SEX, BY RACE, AND BY TRIBAL TRADITION 16 Wisconsin Women's Law Journal 161 (Fall 2001) Feminist legal theory has embraced federal Indian law as lending greater understanding to the legacy of white patriarchy in the United States. Of the U.S. Supreme Court Indian law jurisprudence since 1823, Santa Clara Pueblo v. Martinez is one of the most discussed cases in the feminist discourse. Feminists have largely analyzed it as modern,... 2001
Christopher Parker A Constitutional Examination of the Federal Exemptions for Native American Religious Peyote Use 16 BYU Journal of Public Law 89 (2001) In enacting the American Indian Religious Freedom Amendments Act of 1991 (AIRFAA or the Act), Congress sought to preserve the sacramental use of peyote by traditional Native American religious practitioners by exempting members of federally recognized Indian tribes from state and federal provisions prohibiting peyote possession and use. The... 2001
Robyn L. Robinson A Discussion of the Application of Fica and Futa to Indian Tribes' On-reservation Activities 25 American Indian Law Review 37 (2000-2001) The question of whether federal employment taxes extend to Indian tribes' on-reservation activities is unsettled. Both proponents and opponents of the application can point to numerous factors to support or oppose the argument that federal employment taxes extend to Indian tribes' on-reservation activities. In this unsettled area, it is appropriate... 2001
John Celichowski A Rough and Narrow Path: Preserving Native American Religious Liberty in the Smith Era 25 American Indian Law Review Rev. 1 (2000-2001) To the casual observer, peyote is unremarkable even as a plant. A species of small, spineless cactus found in a limited growth area, principally in present-day Mexico and the State of Texas, it would not appear to have the power to inspire a conversation over coffee, much less a constitutional debate. Similarly, the billions of grapes that fill... 2001
David N. Fagan Achieving Restitution: the Potential Unjust Enrichment Claims of Indigenous Peoples Against Multinational Corporations 76 New York University Law Review 626 (May, 2001) In the rush to exploit untouched resources in remote regions of developing nations, multinational corporations and their local government partners often trample on indigenous land and culture, at times committing atrocities against the indigenous peoples. In this Note, David Fagan examines the use of unjust enrichment as a theory of recovery for... 2001
Robert T. Anderson Alaska Natives and American Laws Second Edition by David S. Case & David Avraham Voluck 18 Alaska Law Review 317 (December, 2001) Alaska Natives and American Laws, Second Edition. By David S. Case & David Avraham Voluck. Fairbanks, AK: University of Alaska Press. Expected date of publication: Spring 2002. Available in hardback and paper; price not indicated. Approximately 560 pp., with bibliography, index, and illustrations. Alaska is home to 226 federally recognized Native... 2001
Victoria Sutton American Indian Law--elucidating Constitutional Law 37 Tulsa Law Review 539 (Winter 2001) The incorporation of American Indian law into the study of Constitutional Law accomplishes a number of pedagogical goals as well as understanding questions concerning American Indian law that naturally evolve in the study. This broadened understanding of the United States Constitution helps to explain the complex subject of opinion writing and the... 2001
John Rockwell Snowden , Wayne Tyndall , David Smith American Indian Sovereignty and Naturalization: It's a Race Thing 80 Nebraska Law Review 171 (2001) I. A Sketch of Naturalization in the United States. 176 A. The Historical Background of Naturalization in the United States. 176 1. English Roots: The Theory of Natural Allegiance. 176 2. The Colonial Experience: The Theory of Volitional Allegiance Emerges. 179 3. Defining the Qualifications for Naturalization After Independence. 181 B. Current... 2001
Laura D. Windsor Amoco Production Company V. Southern Ute Indian Tribe: a Final Resolution to the Battle over Ownership of Coalbed Methane Gas? 17 Georgia State University Law Review 893 (Spring, 2001) The United States' demand for natural gas, an energy source that is critical for power generation and heating, is expected to increase sixty-two percent by the year 2020. Energy analysts question whether current supplies of traditional natural gas will be able to meet this demand. Given this high demand and the potential for limited supply,... 2001
George H. Cortelyou An Attempted Revolution in Native American Housing: the Native American Housing Assistance and Self-determination Act 25 Seton Hall Legislative Journal 429 (2001) I. INTRODUCTION. 429 II. RESERVATION ECONOMIES AND THE NEED FOR AFFORDABLE HOUSING. 432 III. BACKGROUND AND LEGAL CONCEPTS. 435 IV. THE INGREDIENTS OF A SUCCESSFUL HOUSING PROGRAM. 442 V. NAHASDA AND HOW IT WORKS. 446 A. The Statutory Provisions. 446 B. NAHASDA's Success. 452 VI. THE IMPLEMENTATION OF NAHASDA SHOWS ITS SHORTCOMINGS. 455 A. An... 2001
Elizabeth Roat Analyzing Conflicts Between Indian Treaty Rights and Federal Conservation Regulations: Are State Regulation Standards Appropriate? 84 Marquette Law Review 701 (Spring 2001) In July 1998, officials of the United States Department of Agriculture's Forest Service cited David J. Gotchnik for using a motorized vehicle in a no motor area of the Boundary Waters Canoe Area Wilderness (BWCAW) in the Superior National Forest in Minnesota. Gotchnik was traveling across Basswood Lake in northern Minnesota in a canoe powered by... 2001
Julie Thompson Application of the National Labor Relations Act to Indian Tribes: Preserving Indian Self-government and Economic Security 27 University of Dayton Law Review 189 (Fall, 2001) Page I. L2-5,T5Introduction 190 II. L2-5,T5Background 192 A. L3-5,T5The National Labor Relations Act and a Tribal Right-To-Work Ordinance 193 B. L3-5,T5The General Law of Federal Preemption 195 C. L3-5,T5Tribal Sovereignty and the Federal Tribal Relationship 196 III. L2-5,T5Analysis 197 A. L3-5,T5The NLRA Does Not Expressly Preempt a Tribal... 2001
Jeffrey D. Martino At the Edge of the State: Indigenous Peoples and Self-determination. By Maivan Clech Lam. Ardsley Ny: Transnational Publishers, 2000. 4 New York City Law Review 103 (Fall 2001) At the Edge of the State is an erudite and practical work. In her book, Maivân Clech Lâm poses two questions: will indigenous peoples create and enforce an international legal instrument around their interests and will that instrument be binding on all states. Lâm answers affirmatively to the first and conditions the second on a case by case... 2001
Gary D. Meyers , Sally Raine Australian Aboriginal Land Rights in Transition (Part Ii): the Legislative Response to the High Court's Native Title Decisions in Mabo V. Queensland and Wik V. Queensland 9 Tulsa Journal of Comparative & International Law 95 (Fall 2001) This article is the second of a series of two articles which review and assess the development of indigenous land rights law in Australia over the last decade. Part I reviewed and critiqued the Australian High Court's historic judgment in Mabo v. Queensland, acknowledging the reception into Australian common law of the Native Title Doctrine. The... 2001
Laurie Anne Whitt , Mere Roberts , Waerete Norman , Vicki Grieves Belonging to Land: Indigenous Knowledge Systems and the Natural World 26 Oklahoma City University Law Review 701 (Summer 2001) Some years ago, the Cherokee mounted fierce resistance to the construction of the Tellico Dam and the subsequent flooding of the Little Tennessee Valley. Many of their objections were based on the threat that it posed to their cultural heritage. Ammoneta Sequoyah, a medicine man who gathered healing plants in the Valley several times a year,... 2001
David H. Getches Beyond Indian Law: the Rehnquist Court's Pursuit of States' Rights, Color-blind Justice and Mainstream Values 86 Minnesota Law Review 267 (December, 2001) The Supreme Court has made radical departures from the established principles of Indian law. The Court ignores precedent, construing statutes, treaties, and the Constitution liberally to reach results that comport with a majority of the Justices' attitudes about federalism, minority rights, and protection of mainstream values. In the process,... 2001
Faith Smith Building Native American Representation in the Law: the Need for Affirmative Action 12 Berkeley La Raza Law Journal 397 (2001) I am the President of NAES (Native American Educational Services) College, the only private Native-controlled college in the country, and a consultant to the Kellogg Foundation on its Native American Higher Educational Initiative. I have engaged in work relating to Native American education and community development throughout my career. My... 2001
Wendy Nelson Espeland Bureaucrats and Indians in a Contemporary Colonial Encounter 26 Law and Social Inquiry 403 (Spring 2001) . . . to become conscious of the relativity (hence of the arbitrariness) of any feature of culture is already to shift it a little. . . . [History] is nothing other than a series of such imperceptible shifts. -- Tzvetan Todorov 1982, 254 When we discover that there are several cultures instead of just one . . . and when we acknowledge the end of a... 2001
by Vicki J. Limas C & L Enterprises, Inc. 2000-01 Preview of United States Supreme Court Cases 337 (3/13/2001) Under federal law, Indian tribes, as sovereign governments, cannot be sued unless they have consented to suit or the federal government has consented for them; any consent to be sued--i.e., any waiver of sovereign immunity--must be clear and unequivocally expressed. In this case, officials of an Indian tribe signed a construction contract... 2001
  California Indian Tribe Treated as a Corporation for Tax Purposes 11-OCT Journal of Multistate Taxation and Incentives 43 (October, 2001) In a novel administrative case, Appeal of Flores, 2001 WL 809299 (Cal. SBE No. 98R-0910, Case No. 89002462360, 6/21/01), the California State Board of Equalization (SBE) concluded that, for tax purposes, an Indian tribe more closely resembled a corporation than a partnership. This determination, which reversed the findings of the California... 2001
Sidney L. Harring, City University of New York Law School Carolyn N. Long, Religious Freedom and Indian Rights: the Case of Oregon V. Smith. Lawrence: University Press of Kansas, 2000. Xii, 317 Pp. $35.00 (Cloth). $14.95 (Paper) 45 American Journal of Legal History 223 (April, 2001) The Smith case handed down in 1988 and 1990 stands early in a line of a dozen or so of the Rehnquist Court's major cases attacking Indian rights and tribal sovereignty. Carolyn Long has done much to bring the full story to a wider audience. Like all Indian law cases, the case has, at its core, a profound story of one Indian, Al Smith, a Klamath,... 2001
by Kevin J. Worthen Chickasaw Nation Et. Al. 2001-02 Preview of United States Supreme Court Cases 32 (9/24/2001) One section of the Indian Gaming Regulatory Act (25 U.S.C. § 2719(d)(1)) provides that some provisions of the federal tax code apply to tribal gaming operations in the same way they apply to state gaming operations. Unfortunately, specific clauses of the statute create confusion as to exactly which provisions apply. This case requires the Court to... 2001
Trishanda L. Hinton Child Custody Proceedings: Replace the Uniform Child Custody Jurisdiction Enforcement Act; Establish Updated, Uniform Procedures for Child Custody Proceedings; Provide How Courts of this State Shall Treat Indian Tribes and Foreign Countries in Child Custo 18 Georgia State University Law Review 58 (Fall, 2001) Code Sections: O.C.G.A. §§ 19-9-40 to -51, -61 to -70, -81 to -97, -101 to -104 (amended) Bill Number: SB 118 Act Number: 28 Georgia Laws: 2001 Ga. Laws 129 Summary: This Act updates the Uniform Child Custody Jurisdiction Act to include the requirements of the Hague Convention and two federal statutes enacted since the passage of the original law.... 2001
Robert K. Paterson Claiming Possession of the Material Cultural Property of Indigenous Peoples 16 Connecticut Journal of International Law 283 (Spring, 2001) The fate of the material culture of indigenous peoples evokes two different scenarios. Western museums and art galleries contain vast troves of indigenous ethnographic and other material, mostly collected abroad in colonial times. In many countries, including the United States, indigenous populations can only access the material evidence of their... 2001
Sandra D. Benischek Clean Air in Indian Country: Regulation and Environmental Justice 12 Villanova Environmental Law Journal 211 (2001) THE recent publication of the Environmental Protection Agency's Final Rule, Indian Tribes: Air Quality Planning and Management (hereinafter; Final Rule), establishes provisions for the treatment of tribes in the same manner as states for implementation of the Clean Air Act (hereinafter CAA). The Final Rule also establishes requirements for tribal... 2001
Ronen Shamir and Daphna Hacker Colonialism's Civilizing Mission: the Case of the Indian Hemp Drug Commission 26 Law and Social Inquiry 435 (Spring 2001) This paper examines a particular episode in the history of British imperialism in India: the appointment of the Indian Hemp Drug Commission in 1893. We analyze the way a quasi-judicial investigation into the consumption of drugs was differently conceived and executed as a civilizing mission by, on the one hand, British colonizers, and, on the other... 2001
Harold Shepherd Conflict Comes to Roost! The Bureau of Reclamation and the Federal Indian Trust Responsibility 31 Environmental Law 901 (Fall 2001) As illustrated by recent events in southern Oregon, disputes that have been brewing for many years over tribal water rights are beginning to surface. These disputes cost time and resources to the parties involved, causing bad blood between the parties and severe hardship for those directly impacted. Many of these undesirable outcomes could be... 2001
Yair Listokin , Ph.D. Candidate, Princedton University; M.A., Princeton University, 2000; B.A., Harvard University, 1997. Confronting the Barriers to Native American Homeownership on Tribal Lands: the Case of the Navajo Partnership for Housing 33 Urban Lawyer 433 (Spring, 2001) Native Americans Living on Reservations suffer severe housing distress. Even middle- and upper-income Indians on reservations are confronted by inadequate housing, a situation aggravated by a lack of access to home mortgages. Through 1994, not a single conventional mortgage had been closed on the Navajo Nation, an Indian reservation with a land... 2001
Marc J. Monte Corporate Factory/supplier Monitoring Programs and the Failure of International Law in Regulating Indian Factory Conditions 26 Brooklyn Journal of International Law 1125 (2001) In recent years, allegations of sweatshop conditions in factories which produce garments for clothing and athletic footwear lines endorsed by celebrities such as Kathy Lee Gifford and Michael Jordan have called national attention to the global issues of workers' rights, factory conditions and child labor. In response to these revelations, the... 2001
Allison M. Dussias Cultural Conflicts Regarding Land Use: the Conflict Between Recreational Users and Native American Ceremonial Users at Devils Tower 2 Res Communes: Vermont's Journal of the Environment Env't 3 (2000-2001) Conflicts over appropriate uses of public lands containing areas sacred to Native Americans are not new. In a number of federal court cases in the last two decades, Native Americans have brought Free Exercise Clause challenges to certain uses of, and sought to protect access to, public lands containing sacred sites, generally without success. Some... 2001
Allison M. Dussias Cultural Conflicts Regarding Land Use: the Conflict Between Recreational Users at Devil's Tower and Native American Ceremonial Users 2 Vermont Journal of Environmental Law 13 (2001) C1-2Table of Contents Introduction. 13 I. Perspectives on Devils Tower: Its History and Conflicting Uses. 16 A. Devils Tower as a National Monument and Traditional Cultural Property. 16 B. Devils Tower as a Rock Climbing Site. 18 C. Bear's Lodge: Native American History and Use of the Tower. 22 II. The Final Climbing Management Plan: Balancing... 2001
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