AuthorTitleCitationSummaryYear
Robert D. Cooter, Wolfgang Fikentscher Indian Common Law: the Role of Custom in American Indian Tribal Courts (Part Ii of Ii) 46 American Journal of Comparative Law 509 (Summer 1998) V. Substantive Indian Common Law. 509 A. Land. 511 1. Who Owns the Land?. 513 2. Neglect and Reversion. 517 3. An Example: White Mountain Apaches. 519 4. Hopi Land Law Issues. 520 5. Future of Indian Land. 524 B. Theft. 528 C. Repossession. 529 D. Inheritance. 530 E. Environment. 535 F. Family Law. 536 1. Marriage. 537 2. Divorce. 540 3. Child... 1998
Robert D. Cooter, Wolfgang Fikentscher INDIAN COMMON LAW: THE ROLE OF CUSTOM IN AMERICAN INDIAN TRIBAL COURTS (PART II OF II) 46 American Journal of Comparative Law 509 (Summer 1998) V. Substantive Indian Common Law. 509 A. Land. 511 1. Who Owns the Land?. 513 2. Neglect and Reversion. 517 3. An Example: White Mountain Apaches. 519 4. Hopi Land Law Issues. 520 5. Future of Indian Land. 524 B. Theft. 528 C. Repossession. 529 D. Inheritance. 530 E. Environment. 535 F. Family Law. 536 1. Marriage. 537 2. Divorce. 540 3. Child... 1998
Erin Goff Chrisbens Indian Country after Ancsa: Divesting Tribal Sovereignty by Interpretation in Alaska V. Native Village of Venetie Tribal Government 76 Denver University Law Review 307 (1998) The Alaska Native tribe of Venetie Indians has inhabited an area in north-central Alaska since before the United States Supreme Court was even a sparkle in our forefathers' eyes. Yet the recent Supreme Court decision in Alaska v. Native Village of Venetie Tribal Government, arguably stripped the Venetie Indians of the inherent sovereignty and... 1998
Erin Goff Chrisbens INDIAN COUNTRY AFTER ANCSA: DIVESTING TRIBAL SOVEREIGNTY BY INTERPRETATION IN ALASKA V. NATIVE VILLAGE OF VENETIE TRIBAL GOVERNMENT 76 Denver University Law Review 307 (1998) The Alaska Native tribe of Venetie Indians has inhabited an area in north-central Alaska since before the United States Supreme Court was even a sparkle in our forefathers' eyes. Yet the recent Supreme Court decision in Alaska v. Native Village of Venetie Tribal Government, arguably stripped the Venetie Indians of the inherent sovereignty and... 1998
John Randolph Prince Indian Country: a Different Model of Sovereignty 33 Gonzaga Law Review 103 (1997-1998) I. Introduction. 103 II. Sovereignty: A Dangerous Abstraction. 107 A. The King's Excuse. 107 B. The Need for Limits. 109 III. The Benefits of Limited Sovereignty. 110 IV. First Nation Sovereignty: Now You See It, Now You Don't. 115 A. A Confused History. 115 B. A False Narrative. 116 V. First Nation Sovereignty Today. 120 A. Sovereignty in the... 1998
Karen Ferguson Indian Fishing Rights: Aftermath of the Fox Decision and the Year 2000 23 American Indian Law Review 97 (1998) The ongoing Indian fishing rights debate in northern Michigan is intensifying as a 1985 court ordered consent agreement nears its year 2000 expiration date. Many of the local citizenry are concerned that the debate may turn violent as it did in the 1970s. In the 1970s there was fierce competition between Indians and non-Indians over a fish resource... 1998
Heidi L. McNeil Indian Gaming in Arizona 34-JAN Arizona Attorney 13 (January, 1998) Among many Native Americans, the white buffalo is viewed as a spiritual symbol, a sign of good fortune. Today, it has become a metaphor for Indian gaming. In terms of its positive contribution to economic development on the reservation, nothing compares to Indian gaming. With the passage of the Indian Gaming Regulatory Act of 1988 (IGRA), tribal... 1998
Thomas E. Davidson Indian Identity in Eighteenth Century Maryland 23 Oklahoma City University Law Review 133 (Spring-Summer 1998) During the colonial period in Maryland, it was the practice of the provincial government to classify Maryland residents as Indians based on cultural rather than racial criteria. To the Maryland colonial authorities Indians were persons who lived as part of tribal groups recognized by treaty, or who self-identified as Indians to claim treaty... 1998
Alan R. Velie Indian Identity in the Nineties 23 Oklahoma City University Law Review 189 (Spring-Summer 1998) In this Article, the author addresses how Indians in America identify themselves and how that identification differs from non-Indians' conceptions. For many Indians today, Indianness is a matter of history and of participating in traditional cultural activities, rather than merely being enrolled in a tribe or being a certain blood quantum.... 1998
Sandi B. Zellmer Indian Lands as Critical Habitat for Indian Nations and Endangered Species: Tribal Survival and Sovereignty Come First 43 South Dakota Law Review 381 (1998) INTRODUCTION. 382 I. THE TRUST RESPONSIBILITY INCLUDES PROCEDURAL AND SUBSTANTIVE DUTIES TOWARD INDIAN LANDS AND RESOURCES. 385 A. The Origins of the Federal Trust Responsibility. 385 B. Defining the Procedural and Substantive Duties Toward Trust Resources. 389 1. Consultation. 389 2. Tribal Sovereignty and Resources. 390 II. THE ESA, ITS HABITAT... 1998
Sandi B. Zellmer INDIAN LANDS AS CRITICAL HABITAT FOR INDIAN NATIONS AND ENDANGERED SPECIES: TRIBAL SURVIVAL AND SOVEREIGNTY COME FIRST 43 South Dakota Law Review 381 (1998) INTRODUCTION. 382 I. THE TRUST RESPONSIBILITY INCLUDES PROCEDURAL AND SUBSTANTIVE DUTIES TOWARD INDIAN LANDS AND RESOURCES. 385 A. The Origins of the Federal Trust Responsibility. 385 B. Defining the Procedural and Substantive Duties Toward Trust Resources. 389 1. Consultation. 389 2. Tribal Sovereignty and Resources. 390 II. THE ESA, ITS HABITAT... 1998
Reid Peyton Chambers Indian Law in the United States Supreme Court-experiences in the 1980s and Predictions for the 1990s 22 American Indian Law Review 601 (1998) I was asked to make a presentation to the Federal Bar Association's annual Indian Law Conference in April 1991 on Indian Law cases in the United States Supreme Court. The seminal prior presentation on this subject had been made to the 1980 conference by Louis F. Claiborne, who was then Deputy Solicitor General at the Department of Justice. In his... 1998
Tom Tso Indian Nations and the Human Right to an Independent Judiciary 3 New York City Law Review 105 (May, 1998) I would like to approach the topic of Indian rights in the context of international law from a new perspective. Currently, there is uncertainty as to whether the proposed United Nations Declaration of the Rights of Indigenous Peoples will be adopted. Given that the Declaration is stalled in Geneva, and given the resistance of states with large... 1998
Taiawagi Helton Indian Reserved Water Rights in the Dual-system State of Oklahoma 33 Tulsa Law Journal 979 (Spring & Summer, 1998) I. Introduction. 979 II. State Water Law. 982 A. The Riparian Doctrine. 982 B. The Appropriation Doctrine. 983 C. The Dual-System. 984 D. Oklahoma. 985 III. The Reserved Rights Doctrine. 987 A. Evolution. 987 B. Characteristics. 989 C. Reserved Water and the State Systems. 990 IV. The Sources of Indian Water Rights in Oklahoma. 991 A. History of... 1998
Charles F. Wilkinson Indian Tribal Rights and the National Forests: the Case of the Aboriginal Lands of the Nez Perce Tribe 34 Idaho Law Review 435 (1998) C1-3TABLE OF CONTENTS I. THE 1855 TREATY. 436 II. THE 1863 TREATY. 441 III. ALLOTMENT. 443 IV. THE MODERN ERA. 446 V. THE NEZ PERCE TRIBE AND THE FOREST SERVICE. 450 VI. CURRENT DISPUTES BETWEEN THE TRIBE AND THE FOREST SERVICE. 452 VII. CONCLUSION. 461 1998
Aaron S. Duck Indians: Modern Tribal Jurisdiction over Non-indian Parties: the Supreme Court Takes Another Bite out of Tribal Sovereignty in Strate V. A-1 Contractors 51 Oklahoma Law Review 727 (Winter, 1998) Indian tribes occupy a unique status in American law. Before European immigration to America, Indian tribes were self-governing sovereign political communities. They exercised unlimited power over all people within their communities. Indian tribes, however, no longer possess the full attributes of sovereignty. Recent court decisions often... 1998
Aaron S. Duck INDIANS: MODERN TRIBAL JURISDICTION OVER NON-INDIAN PARTIES: THE SUPREME COURT TAKES ANOTHER BITE OUT OF TRIBAL SOVEREIGNTY IN STRATE V. A-1 CONTRACTORS 51 Oklahoma Law Review 727 (Winter, 1998) Indian tribes occupy a unique status in American law. Before European immigration to America, Indian tribes were self-governing sovereign political communities. They exercised unlimited power over all people within their communities. Indian tribes, however, no longer possess the full attributes of sovereignty. Recent court decisions often... 1998
Mark A. Michaels Indigenous Ethics and Alien Laws: Native Traditions and the United States Legal System 66 Fordham Law Review 1565 (March, 1998) nATIVE American attorneys who maintain a traditional orientation face a set of ethical dilemmas that arise from living in two worlds, from their very participation in a legal system that has operated most often as an instrument of conquest, colonization, and dispossession. The non-Native attorney who works with or on behalf of traditional people... 1998
Robert H. Berry III Indigenous Nations and International Trade 24 Brooklyn Journal of International Law 239 (1998) Robert Reich, in The Work of Nations, argues that the notion of a national economy--distinct from the global economy--is becoming outdated. Unfortunately, in an era where economic policy must be increasingly fashioned in global terms, the economies of Indigenous Nations in present-day Canada and the United States remain isolated from international... 1998
Lloyd Burton Indigenous Peoples and Environmental Policy in the Common Law Nation-states of the Pacific Rim: Sovereignty, Survival, and Sustainability 1998 Colorado Journal of International Environmental Law and Policy 136 (1998) For most of human history, peoples on both sides of the Pacific Ocean have regarded its vast expanse as a somewhat daunting geographic barrier. It has separated East from West, the known from the unknown, the familiar from the mysterious. Although Polynesian navigators have been traversing the majority, if not the entirety, of its breadth for a... 1998
S. James Anaya Indigenous Peoples and International Law Issues 92 American Society of International Law Proceedings 96 (April 1-4, 1998) I want to comment on the influence of indigenous peoples and their perspectives on certain aspects of the international legal system. In mainstream academic circles, indigenous peoples constitute a much overlooked category of non-state actors that are making their mark on the international system of rules, procedures and institutions. By indigenous... 1998
Benedict Kingsbury Indigenous Peoples in International Law: a Constructivist Approach to the Asian Controversy 92 American Journal of International Law 414 (July, 1998) Over a very short period, the few decades since the early 1970s, indigenous peoples has been transformed from a prosaic description without much significance in international law and politics, into a concept with considerable power as a basis for group mobilization, international standard setting, transnational networks and programmatic activity... 1998
Laurie Anne Whitt Indigenous Peoples, Intellectual Property & the New Imperial Science 23 Oklahoma City University Law Review 211 (Spring-Summer 1998) Historians of science have argued that in the late eighteenth and nineteenth centuries the rule of law was identified with scientific method and pursuit of knowledge of the natural world became, for the West, part of statecraft, a means of extending empire. This Article is concerned with the continuation of that history in the present, with the... 1998
William Kittredge Inside the Earth 18 Journal of Land, Resources,and Environmental Law L. 1 (1998) The New Year's Day party in Missoula was more a celebration of endurance than a pure drift into pleasure. On the 5th of January 1992, we were airborne in the winter light, flying toward Paris, going to what I hoped would be a wake-up call. Like a boy of my time I most enjoyed imagining I was going to be standing at a bar where Hemingway stood,... 1998
Rosemary J. Coombe Intellectual Property, Human Rights & Sovereignty: New Dilemmas in International Law Posed by the Recognition of Indigenous Knowledge and the Conversation of Biodiversity 6 Indiana Journal of Global Legal Studies 59 (Fall, 1998) What would it mean to recognize intellectual property rights as international human rights? This is a speculative question because although there is a case to be made that intellectual property rights (IPRs) are already human rights, they are rarely approached in this fashion, either by governments or by the holders of such rights. By situating... 1998
Sharon Wheeler Is the Die Cast? Indian Casino Gambling in Maine 50 Maine Law Review 143 (1998) I. L2-4,T4Introduction 144 II. L2-4,T4Why Federally Recognized Indian Tribes Have Special Gambling Rights 146 A. L3-4,T4The Doctrine of Tribal Sovereignty 146 B. L3-4,T4Judicial Review of Congressional Action in Indian Law 150 III. L2-4,T4Indian Gaming Under the Indian Gaming Regulatory Act 153 A. L3-4,T4The Indian Gaming Regulatory Act (IGRA)... 1998
Nancy Shoemaker, University of Wisconsin-Eau Claire Jeffrey Burton, Indian Territory and the United States, 1866-1906: Courts, Government, and the Movement for Oklahoma Statehood, Norman and London: 16 Law and History Review 434 (Summer, 1998) In researching and writing this political and legal history of Indian Territory in the post-Civil War period, Jeffrey Burton assumed a monumental task. Neither state nor territory and composed largely of semiautonomous Indian nations, Indian Territory held a unique status in American law. To fully understand how law worked in this complex region,... 1998
Don Torgenrud, Attorney at Law, St. Ignatius. Judge Callaway's Memoir a "Must Read" for Lawyer-historians 23-FEB Montana Lawyer 17 (February, 1998) If you are interested in Montana history as seen through the eyes of a cowboy, lawyer, prosecutor and judge, beginning five years before Custer's last stand and ending six years before the launch of Sputnik, you'll enjoy these memoirs. Judge Callaway was an early pioneer in Montana water law and his decisions were praised by no less authority than... 1998
Karen L. Folster Just Cheap Butts, or an Equal Protection Violation?: New York's Failure to Tax Reservation Sales to non-indians 62 Albany Law Review 697 (1998) The failure to enforce the Tax Laws against some to whom they apply, to the detriment of others, is unconstitutional. The unconstitutionality lies not on the face of the statute but in its unequal enforcement. Such is the meaning of the doctrine, a government of laws. --Judge Joseph Harris In May of 1997, New York Governor George Pataki made a... 1998
Steven G. Biddle LABOR AND EMPLOYMENT ISSUES FOR TRIBAL EMPLOYERS 34-JAN Arizona Attorney 16 (January, 1998) For the most part, the advent of Indian gaming on reservations has been a lucrative and generally positive experience for Indian tribes and tribal corporations. Positive effects of reservation gaming include more jobs for both Indians and non-Indians in the tribal government and in the casinos. In fact, tribal casinos in Arizona have created... 1998
Brad Asher Larry C. Skogen, Indian Depredation Claims, 1796-1920, Norman, Oklahoma: University of Oklahoma Press, 1996. Pp. Xx + 290. $34.95 (Isbn 0-8061-2789-9). 16 Law and History Review 620 (Fall, 1998) From 1796 until 1920, the Federal government promised to indemnify those who lost property because of depredations by Indians. Larry Skogen has produced a solidly researched and clearly written account of how the depredation claims system functioned, but his attempt to link the development of that system to the larger legal history of the United... 1998
Ann Marie Plane Legitimacies, Indian Identities, and the Law: the Politics of Sex and the Creation of History in Colonial New England 23 Law and Social Inquiry 55 (Winter, 1998) In an early-eighteenth-century legal contest on Chappaquiddick Island, Massachusetts, an Indian leader, Jacob Seeknout, appealed a ruling that undermined his political authority. Seeknout's lawyer, Benjamin Hawes, crafted an argument that intertwined the sexual legitimacy of Seeknout's ancestors with his political legitimacy; at the same time,... 1998
Scott D. Danahy License to Discriminate: the Application of Sovereign Immunity to Employment Discrimination Claims Brought by Non-native American Employees of Tribally Owned Businesses 25 Florida State University Law Review 679 (Spring, 1998) I. Introduction. 679 II. Roselius v. McDaniels. 680 III. The Changing Role of Tribes as Employers. 682 IV. The Doctrine of Tribal Sovereign Immunity. 683 V. Employment Discrimination Claims Against Tribal Businesses Are Not Subject to the Defense of Sovereign Immunity. 686 A. Congress's Use of Its Plenary Power to Limit Tribal Immunity. 686 B.... 1998
Dan Flores Making the West Whole Again: Historical Perspective on Restoration 18 Journal of Land, Resources,and Environmental Law 17 (1998) In his 38th year, less than a decade before death came calling in 1862, the Massachusetts essayist and iconoclast, Henry David Thoreau, fell into the habit of studying the accounts of early settlers who had left descriptions of New England as it had appeared to them 200 years earlier. Compared with the America they had found, Thoreau realized, his... 1998
by S. James Anaya Maya Aboriginal Land and Resource Rights and the Conflict over Logging in Southern Belize 1 Yale Human Rights and Development Law Journal 17 (1998) P1 In the last several years, the government of Belize, through its Ministry of Natural Resources, has granted at least seventeen concessions for logging on lands totaling approximately 480,000 acres in the Toledo District, its most southern political subdivision. The rural parts of the Toledo District that are affected by the concessions are... 1998
By James R. Rasband Minnesota 1998-99 Preview of United States Supreme Court Cases 149 (11/20/1998) In 1837, the United States and twelve bands of Chippewa Indians executed a treaty, of which Article V guaranteed the bands [t]he privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, . . . during the pleasure of the President of the United States. The Court decides... 1998
  Montana 1997-98 Preview of United States Supreme Court Cases 43 (7/10/1998) The State of Montana and the Crow Tribe of Indians (the Tribe) both have authority to impose taxes on coal mined from a strip of land called the ceded strip that returned to reservation status in 1958 after the strip had been given to the United States as required by a 1904 federal statue. However, the coextensive authority of Montana and the... 1998
by Troy L. Harris-Abbott Montana et Al. 1997-98 Preview of United States Supreme Court Cases 322 (2/12/1998) Both Montana and the Crow Indian Tribe sought to tax coal mining operations occurring on the Tribe's land. Before the State's taxes were declared invalid to the extent imposed on mining activities taking place on a portion of the Tribe's property, the State had received some $57 million in tax revenue. In this case, the Supreme Court reviews the... 1998
Hon. Sherry Hutt Native American Cultural Property Law 34-JAN Arizona Attorney 18 (January, 1998) In the larger scope of history this is a small thing; in the smaller scope of conscience, it may be the biggest thing we have ever done.Congressman Morris Udall, October 1990 This decade began with a resurgence of human rights activism on a scale not seen for 30 years. The recent events were quiet ones. The scene of the activity was the U.S.... 1998
  Native American Law Students Association 5 Michigan Journal of Gender & Law 220 (1998) The Native American Law Student Association strongly supports the use of affirmative action at the University of Michigan Law School and LS & A. Diversity of thought, experience, background, and beliefs both inside and outside the classroom is essential in creating a fully enriching educational environment. This is particularly important in the law... 1998
Anthony Michael Sabino Native American Rights 45-APR Federal Lawyer 20 (March/April, 1998) Long before the Petroleum Age, the lands that now constitute the Oil Patch were primarily the domain of the Native American peoples. Subsequently known as Indian country, to this day these territories continue to maintain two prominent features--the production of oil and natural gas, and the presence of Native American nations on lands reserved... 1998
Ronald D. Wenkart, J.D. Native Language Instructionand the Special Education Student: Who Decides the Instructional Methodology? 125 West's Education Law Reporter 581 (July, 1998) Recently, members of the Region IX staff of the United States Department of Education, Office for Civil Rights (OCR), expressed the opinion that school districts must provide native language instruction to special education students even if the school district provides an English as a Second Language (ESL) or English Immersion Program for regular... 1998
Gigi Berardi Natural Resource Policy, Unforgiving Geographies, and Persistent Poverty in Alaska Native Villages 38 Natural Resources Journal 85 (Winter, 1998) This paper presents an analysis regarding the causes of persistent rural poverty in Alaska Native villages. It discusses the background, structure, and function of PL 92-203, the Alaska Native Claims Settlement Act (ANCSA), how the Act undermines Native polities and traditional natural resource utilization, and the Act's consequent contribution to... 1998
Mr. Farley New Executive Order on Native American Consultation 1998-OCT Army Lawyer 65 (October, 1998) On 14 May 1998, President Clinton signed Executive Order 13,084, Consultation and Coordination with Indian Tribal Governments. Executive Order 13,084 should not impose any new compliance requirements on individual installations. When read together with Executive Memorandum of April 29, 1994 on Government-to-Government Relations with Native American... 1998
Samuel J. Panarella Not in My Backyard Pash V. Hpc: the Clash Between Native Hawaiian Gathering Rights and Western Concepts of Property in Hawaii 28 Environmental Law 467 (Summer 1998) Western property law in Hawaii exists in an uneasy truce with the original native gathering practices that existed before the arrival of Europeans. The Author traces the development of Hawaiian law, from the early cases that severely restricted gathering rights to the more permissive results in PASH v. HPC. The Author argues that this trend is a... 1998
M. V. Rajeev Gowda & Doug Easterling Nuclear Waste and Native America: the Mrs Siting Exercise 9 Risk: Health, Safety and Environment 229 (Summer, 1998) The U.S. government's quest to store high-level nuclear waste has had many interesting twists and turns. One set of developments stands out as unique efforts to site a temporary Monitored Retrievable Storage (MRS) facility on lands belonging to Native Americans. We describe the history and logic of the government's process which led to the... 1998
Geoffrey C. Heisey Oliphant and Tribal Criminal Jurisdiction over Non-indians: Asserting Congress's Plenary Power to Restore Territorial Jurisdiction 73 Indiana Law Journal 1051 (Summer 1998) Introduction WARNING WARNING NO OUTSIDE WHITE VISITORS ALLOWED BECAUSE OF YOUR FAILURE TO OBEY THE LAWS OF OUR TRIBE AS WELL AS THE LAWS OF YOUR OWN. THIS VILLAGE IS HEREBY CLOSED. cm For nearly twenty years, tribal courts and law-enforcement authorities have been in the unenviable position of lacking criminal jurisdiction over non-Indians who... 1998
Antony Anghie On the Indians Lately Discovered and Sixteenth-century International Law 92 American Society of International Law Proceedings 374 (April 1-4, 1998) This paper offers a reading of Francisco de Vitoria's lecture, On the Indians Lately Discovered, a sixteenth-century text dealing with the legitimacy of Spanish rule over the Indians of the Americas, regarded as one of the most important early texts of the discipline. Focusing on Vitoria's characterization of the relationship between colonialism... 1998
Sonya Lipsett-Rivera Outsiders into Insiders: the Doctrine of Prior Appropriation and Indigenous Communities in Colonial Puebla, Mexico 23 Oklahoma City University Law Review 93 (Spring-Summer 1998) This Article examines the way in which the doctrine of prior appropriation was applied to colonial Puebla. Because of its very nature, this judicial doctrine should have privileged indigenous farmers with irrigation because they had a solid claim to ancient and peaceful possession of water rights. It was a system which rewarded insiders (with... 1998
  Panel Discussions from "Indian Nations on the Eve of the Twenty-first Century" 43 South Dakota Law Review 438 (1998) On the afternoon of May 19, 1998, in the University of South Dakota School of Law Courtroom, two panels assembled to discuss current issues in Indian land and water rights. The panels were part of the Fifth Biennial Indian Law Symposium entitled Indian Nations on The Eve of The Twenty-First Century: Sovereignty, Self-Government, Water Rights, Land... 1998
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