AuthorTitleCitationSummaryYear
Joseph William Singer The Stranger Who Resides with You: Ironies of Asian-american and American Indian Legal History 19 Boston College Third World Law Journal 171 (Fall, 1998) When a stranger resides with you in your land, you shall not wrong him. The stranger who resides with you shall be to you as one of your citizens; you shall love him as yourself, for you were strangers in the land of Egypt: I am the Lord your God. Vayikra (Leviticus) 19:33-34 I want to begin by noting the personal poignancy of the timing of this... 1998
Randy L. Meyer The Supreme Court's Analysis in Idaho V. Coeur D'alene Tribe of Idaho: Is the Young Exception to the Eleventh Amendment Inapplicable to Indian Tribe Claims? 30 University of Toledo Law Review 131 (Fall 1998) Introduction IN Idaho v. Coeur d'Alene Tribe of Idaho, the U.S. Supreme Court addressed whether the Eleventh Amendment to the U.S. Constitution barred an Indian tribe from seeking an injunction against state officials in federal court under Ex parte Young. Specifically, the Court considered whether Young, an exception to the Eleventh Amendment,... 1998
Dan Gunter The Technology of Tribalism: the Lemhi Indians, Federal Recognition, and the Creation of Tribal Identity 35 Idaho Law Review 85 (1998) C1-3TABLE OF CONTENTS I. THE DEVELOPMENT OF THE CONCEPT OF THE TRIBE IN FEDERAL INDIAN LAW. 90 II. THE TECHNOLOGY OF TRIBALISM. 98 A. The Discourse of Orientalism'. 99 B. Disciplinary Technologies. 104 III. THE TECHNOLOGY OF TRIBALISM AND THE LEMHI INDIANS. 111 IV. CONCLUSION. 121 1998
Dan Gunter THE TECHNOLOGY OF TRIBALISM: THE LEMHI INDIANS, FEDERAL RECOGNITION, AND THE CREATION OF TRIBAL IDENTITY 35 Idaho Law Review 85 (1998) C1-3TABLE OF CONTENTS I. THE DEVELOPMENT OF THE CONCEPT OF THE TRIBE IN FEDERAL INDIAN LAW. 90 II. THE TECHNOLOGY OF TRIBALISM. 98 A. The Discourse of Orientalism'. 99 B. Disciplinary Technologies. 104 III. THE TECHNOLOGY OF TRIBALISM AND THE LEMHI INDIANS. 111 IV. CONCLUSION. 121 1998
Blake A. Watson The Thrust and Parry of Federal Indian Law 23 University of Dayton Law Review 437 (Spring 1998) Table of Contents Page I. Introduction. 438 II. Federal Authority in Indian Country. 443 A. The Doctrine of Discovery. 443 B. Federal Acquisition of Indian Lands and Recognition of Indian Property Rights. 447 C. The Guardian-Ward Relationship and Trust Doctrine. 450 D. The Plenary Power Doctrine. 452 E. The Indian Canons of Construction. 456 III.... 1998
Louis F. Claiborne The Trend of Supreme Court Decisions in Indian Cases 22 American Indian Law Review 585 (1998) For the last several decades, Indian cases in the Supreme Court of the United States have enjoyed a very low profile. That may not be flattering to the tribes or to the advocates who argue Indian cases. But, on the whole, Indians have benefitted from the general disinterest in their cases. This is so for two related reasons. (a) Within the Court... 1998
Britt E. Ide To Defer or Not to Defer? The Circuit Split over Chevron Deference to Agency Interpretations: Southern Ute Indian Tribe V. Amoco Production Co. 1998 Utah Law Review 397 (1998) The law regarding the level of deference courts give to an administrative agency's statutory interpretation that is neither a rulemaking nor an adjudication is in disarray. The federal circuit courts of appeals have split on the issue, conflicts exist even within circuits, and the Supreme Court's decisions have only confused the question.... 1998
Nell Jessup Newton Tribal Court Praxis: One Year in the Life of Twenty Indian Tribal Courts 22 American Indian Law Review 285 (1998) In July 1997, Sen. Slade Gorton (R.-Wash.) appended a rider to the Interior Appropriations Act requiring all tribes receiving federal funds to waive sovereign immunity in federal court for cases brought by non-Indians. Although ultimately defeated, the rider was an attack on the entire tribal court system, because it was premised on the assumption... 1998
Nell Jessup Newton TRIBAL COURT PRAXIS: ONE YEAR IN THE LIFE OF TWENTY INDIAN TRIBAL COURTS 22 American Indian Law Review 285 (1998) In July 1997, Sen. Slade Gorton (R.-Wash.) appended a rider to the Interior Appropriations Act requiring all tribes receiving federal funds to waive sovereign immunity in federal court for cases brought by non-Indians. Although ultimately defeated, the rider was an attack on the entire tribal court system, because it was premised on the assumption... 1998
Troy M. Yoshino Ua Mau Ke Ea O Ka Aina I Ka Pono: Voting Rights and the Native Hawaiian Sovereignty Plebiscite 3 Michigan Journal of Race and Law 475 (Spring 1998) Using the Native Hawaiian Sovereignty Plebiscite to investigate the complex interplay between race, nationalism, and the special purpose district exception, this Note chronicles the development of relevant legal doctrines and the history of the Native Hawaiians' quest for self-government in an attempt to untangle those issues. In doing so, this... 1998
William Bennett Cooper, III What's in the Cards for the Future of Indian Gaming Law? 5 Villanova Sports and Entertainment Law Journal 129 (1998) If there is one eternal verity which emerges from Indian law, history, and policy, it is that like little Alice [in Wonderland], we are never certain of the Rules of Battle. Consistently, the rules have changed, often for reasons that have little to do with Indian concerns or needs. Chief Justice Rehnquist described the unique relationship... 1998
Kevin J Worthen Why Indian Law? 1 Green Bag 341 (Spring 1998) WHEN ASKED what subjects I teach, I usually list federal Indian law first. The reaction is often a quizzical look, sometimes accompanied by a verbal articulation of the mental question behind the look: Why Indian law? In a way, I am flattered (perhaps unjustifiably) by this reaction--for it seems to imply that I have the ability to be doing... 1998
Elaine Smith, Angelina Okuda-Jacobs Winner, Best Appellate Brief in the 1998 Native American Law Student Association Moot Court Competition 23 American Indian Law Review 181 (1998) I. Whether an Indian Nation retains its sovereign immunity from suit when it engages in commercial activities off its reservation, when it waives its sovereign immunity from arbitration proceedings, and when it waives its sovereign immunity in a contract not at issue in the present dispute. II. Whether state courts lack jurisdiction to adjudicate a... 1998
Tony Prosser A British Perspective on Structuring the Indian Broadcasting Regulatory Authority 5 Cardozo Journal of International and Comparative Law 491 (Fall 1997) The subject of broadcasting regulation is one of considerable controversy as regulatory institutions seek to come to terms with the new broadcasting environment. This would appear to lend itself to the argument for flexibility in the institutional forms adopted, and, indeed, experience worldwide suggests that many different forms of regulatory... 1997
  A Case of First Impression: American Indians Seek Cancellation of the Trademarked Term "Redskins." 87 The Trademark Reporter 112 (January-February, 1997) In September 1992, seven prominent Native American leaders filed a proceeding against the Washington Redskins football organization seeking to cancel their federal registration for the trademark REDSKINS, a mark in use since 1933 and the first registration for which was issued in 1967. This case comment discusses the petition and its grounds: that... 1997
Jose Monsivais A Glimmer of Hope: a Proposal to Keep the Indian Child Welfare Act of 1978 Intact 22 American Indian Law Review Rev. 1 (1997) The Indian Child Welfare Act of 1978 (the Act) was enacted by Congress for the purpose of assisting parents, Indian custodians, and Indian tribes in protecting Indian children from removal and placement by state agencies and courts, into non-Indian homes. The Act establishes federal safeguards state courts must comply with in all custody... 1997
Joseph D. Matal A Revisionist History of Indian Country 14 Alaska Law Review 283 (12/1/1997) This Article argues that tribal sovereignty is not purely a question of federal intent, but rather also requires an affirmative cession of jurisdiction by the state. The Article traces the history of the Indian country concept and concludes that the current statute was never intented to create tribal sovereignty. It urges a return to the historical... 1997
Shreekant Vattiikuti Accelerating Towards Globalization: Indian Securities Regulation since 1992 23 North Carolina Journal of International Law and Commercial Regulation 105 (Fall 1997) I. Introduction. 105 II. Background. 109 A. History of Securities in India. 109 B. Government Structure of India. 116 C. Market Structure1. 18 III. The Primary Market. 121 A. Issuance of Capital. 121 B. Registration and Prospectus Requirements. 122 C. Foreign Issues by Domestic Corporations. 125 D. Exemption from the Capital Issue Act. 128 IV. The... 1997
Philip P. Frickey Adjudication and its Discontents: Coherence and Conciliation in Federal Indian Law 110 Harvard Law Review 1754 (June, 1997) Federal Indian law is rooted in conflicting principles that leave the field in a morass of doctrinal and normative incoherence. In this Commentary, Professor Frickey begins by criticizing two recent efforts to bring coherence to this field. One approach, which narrows the scope of inquiry and attempts to apply non-normative doctrinal analysis,... 1997
Laurie Reynolds Adjudication in Indian Country: the Confusing Parameters of State, Federal, and Tribal Jurisdiction 38 William and Mary Law Review 539 (January, 1997) As a gauge of the strength of the United States government's commitment to the development of a vital and vigorous tribal judicial system, the Supreme Court could hardly appear more positive and unwavering in the language of its decided cases. In Williams v. Lee, the Court issued its first modern opinion stressing the importance of tribal courts as... 1997
Laurie Reynolds ADJUDICATION IN INDIAN COUNTRY: THE CONFUSING PARAMETERS OF STATE, FEDERAL, AND TRIBAL JURISDICTION 38 William and Mary Law Review 539 (January, 1997) As a gauge of the strength of the United States government's commitment to the development of a vital and vigorous tribal judicial system, the Supreme Court could hardly appear more positive and unwavering in the language of its decided cases. In Williams v. Lee, the Court issued its first modern opinion stressing the importance of tribal courts as... 1997
Keri B. Lazarus Adoption of Native American and First Nations Children: Are the United States and Canada Recognizing the Best Interests of the Children? 14 Arizona Journal of International & Comparative Law 255 (Winter, 1997) Since the colonization of North America, Indians and First Nations have struggled to maintain their identity and thrive as a culture under U.S. and Canadian laws. As Susan Shown Harjo, Executive Director of the National Congress of American Indians, stated before the House Select Committee on Children, Youth, and Families: The experience of most... 1997
Bethany Ruth Berger After Pocahontas: Indian Women and the Law, 1830 to 1934 21 American Indian Law Review Rev. 1 (1997) I. Introduction. 2 II. The Nineteenth Century and Indian Women: Federal Indian Policy and the Cult of True Womanhood. 6 III. Federal and State Governments and Indian Women: As Themselves, as Mothers, and as Wives. 12 A. The Beginning: Ladiga's Heirs and Indian Women in Their Own Right. 12 B. Indian Women as Wives and Mothers: Intermarriage and... 1997
by Troy L. Harris-Abbott Alaska 1997-98 Preview of United States Supreme Court Cases 167 (11/21/1997) In this case, a Native American Indian village in Alaska argues that it is Indian country as defined by federal law and, therefore, is entitled to impose a tax on commercial activity there. Alaska argues that there is no Indian country in the State which means that tribes have no taxing or other sovereign authority. In a case that examines the... 1997
Max Minzner Alaska V. Native Village of Venetie, 101 F.3d 1286 (9th Cir. 1996), Cert. Granted, 117 S. Ct. 2478 (1997). 107 Yale Law Journal 863 (December, 1997) Congressional pronouncements in the area of Indian law have often been both sweeping and contradictory. To clear away some of the resulting confusion, the Supreme Court has adopted canons for construing these acts: Most importantly, ambiguous statutes and treaties are interpreted in favor of the tribes. In Alaska v. Native Village of Venetie, the... 1997
Donald Craig Mitchell Alaska V. Native Village of Venetie: Statutory Construction or Judicial Usurpation? Why History Counts 14 Alaska Law Review 353 (12/1/1997) This Article conducts a thorough review of the legislative history determining the sovereignty status of Alaska Natives and the existence of Indian country in Alaska. The Article discusses congressional policies toward Alaska Natives from the time the Territory was first acquired up to the Alaska Native Claims Settlement Act Amendments passed by... 1997
Richard J. Ansson, Jr. American Indian Legal History and the American Indian Woman 21 American Indian Law Review 205 (1997) Changing Woman. By Karen Anderson. Oxford: Oxford University Press. 1996. Pp. 291. Changing Woman, by Karen Anderson, is a perspicuous book that yields a profoundly thorough, yet astoundingly thoughtful, insight into the historical aspects of federal Indian policy and the residual effect those policies have had on American Indian women.... 1997
Rebecca Tsosie American Indians and the Politics of Recognition: Soifer on Law, Pluralism, and Group Identity 22 Law and Social Inquiry 359 (Spring, 1997) As the 20th century draws to a close, Americans find themselves in a bit of a crisis: not quite sure who they are, not quite sure why it matters, but sensing a void in identity and place. America is, after all, largely a society of immigrants. First-grade classroom teachers call on students to tell about their family heritage, most often... 1997
Scott A. Taylor An Introduction and Overview of Taxation and Indian Gaming 29 Arizona State Law Journal 251 (Spring, 1997) Taxation in Indian Country is necessarily complex because it blends together the legal complexity that arises when three sovereigns are involved in a technically confusing area of tax law. It is often very difficult to predict the tax consequences that will attach to a particular transaction that takes place in Indian Country. This lack of... 1997
Frank W. DiCastri Are All States Really Equal? The "Equal Footing" Doctrine and Indian Claims to Submerged Lands 1997 Wisconsin Law Review 179 (1997) This Union was and is a union of States, equal in power, dignity, and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself. To maintain otherwise would be to say that the Union, through the power of Congress to admit new States, might come to be a union of States unequal in... 1997
  B. Taxing the Income of Enrolled Reservation Indians Working as State Employees 1997 Utah Law Review 180 (1997) In Maryboy v. Utah State Tax Commission, the Utah Supreme Court considered whether Utah has jurisdiction to tax members of an Indian nation who are employed as publicly elected officials or as state mental health workers. The court affirmed the decision of the Utah State Tax Commission (Tax Commission) that the State's interest in taxing a... 1997
  Babbitt V. Youpee: Allotment and the Continuing Loss of Native American Property and Rights to Devise 19 University of Hawaii Law Review 265 (Spring, 1997) This land between the worlds is that inexplicable place we all recognize once we experience it, but its nuances slip away and shape-change if one tries to pin them down, except when we use poetry, music, dance ... or story. The ownership of land and the right to pass that land to our heirs; few concepts strike a more fundamental chord in this... 1997
Karen E. Bravo Balancing Indigenous Rights to Land and the Demands of Economic Development: Lessons from the United States and Australia 30 Columbia Journal of Law and Social Problems 529 (Summer 1997) It is the year 2097. Ninety years ago the planet Terra was discovered by the Ozakas, a race from a faraway galaxy. Terra was a convenient refuelling port on the trade route to Alpha Centauri and, in addition, had a wealth of natural resources on and below its sea bed, which were almost completely undisturbed. The Ozakas decided to colonize the... 1997
Stephanie A. Levin Betting on the Land: Indian Gambling and Sovereignty 8 Stanford Law and Policy Review 125 (Winter, 1997) Recently, more and more Americans have been surprised to discover that Indian tribes are actually separate, and in many ways self-governing, units within the American political structure. While they may have been aware that Indians lived on reservations somewhere, or may have had vague and probably stereotyped images of Indian history and... 1997
Richard A. Monette Braid of Feathers: American Indian Law and Contemporary Tribal Life 42 South Dakota Law Review 579 (1996-1997) Frank Pommersheim's Braid of Feathers: American Indian Law and Contemporary Indian Life offers a thoughtful invitation and a skillful guide into the largely uncharted terrain where federal Indian law meets tribal Indian law. Although of broad scope, including some insightful generalizations about the politics and economics of the American West, the... 1997
Richard A. Monette BRAID OF FEATHERS: AMERICAN INDIAN LAW AND CONTEMPORARY TRIBAL LIFE 42 South Dakota Law Review 579 (1996-1997) Frank Pommersheim's Braid of Feathers: American Indian Law and Contemporary Indian Life offers a thoughtful invitation and a skillful guide into the largely uncharted terrain where federal Indian law meets tribal Indian law. Although of broad scope, including some insightful generalizations about the politics and economics of the American West, the... 1997
Larry A. DiMatteo , Michael J. Meagher Broken Promises: the Failure of the 1920's Native American Irrigation and Assimilation Policies 19 University of Hawaii Law Review Rev. 1 (Spring, 1997) The history of the government connections with the Indians is a shameful record of broken treaties and unfulfilled promises. Man is explicable by nothing less than all his history. Without hurry, without rest, the human spirit goes forth. The history of Indian-white relations has generally been one focused upon ownership of land and the rights... 1997
Melissa L. Koehn CIVIL JURISDICTION: THE BOUNDARIES BETWEEN FEDERAL AND TRIBAL COURTS 29 Arizona State Law Journal 705 (Fall, 1997) C1-4Table of Contents L1-4 I. L2-3,T3In the Beginning 708 L1-4 II. L2-3,T3And on the Third Day, the Supreme Court Created the Tribal Exhaustion Doctrine 713 A. National Farmers Union. 714 1. Background. 714 2. The Supreme Court's Opinion. 717 B. Iowa Mutual. 723 L1-4 III. L2-3,T3And on the Following Days, the Doctrine Was Without Form, Although It... 1997
John A. Ruiter Combating the Non-native Species Invasion of the United States 2 Drake Journal of Agricultural Law 259 (Spring, 1997) I. Introduction. 259 II. History of Non-Native Aquatic Species. 260 III. Indirect Federal Legislation Affecting Non-Native Species. 264 IV. Existing Law Directly Targeting Non-Native Aquatic Species. 266 V. Proposed Legislation Directly Targeting Non-Native Aquatic Species. 269 VI. Filling the Holes With Nuisance Law. 271 VII. Conclusion. 274 1997
Markus Schmidt Coming to Grips with Indigenous Rights 10 Harvard Human Rights Journal 333 (Spring, 1997) The literature on indigenous peoples has expanded considerably in recent years. The subject has become fashionable, since the discussion of indigenous peoples' rights easily lends itself to a critique of modernity. Many symposia on indigenous peoples' demands are held every year. With this in mind, one might justifiably question the necessity of... 1997
Colleen F. Walsh Constitutional Law--sovereign Immunity--congress's Article I Powers May Not Abrogate State Sovereign Immunity Granted by the Eleventh Amendment and ex Parte Young Is Inapplicable to Suits Brought under the Indian Gaming Regulatory Act--seminole Tribe V. F 27 Seton Hall Law Review 806 (1997) The concept of sovereign immunity predates the formation of a federal government in the United States. Initially founded on the belief that the King enjoyed immunity from all private suits, some scholars argue that the Tenth Amendment incorporated sovereign immunity into the Constitution. Others claim the protection of sovereign immunity did not... 1997
Bill D. Nelson Controlling Harmful Non-native Plants at Local Levels 4 Hastings West-Northwest Journal of Environmental Law and Policy 75 (Summer, 1997) Perpetuating the life of the land is a central theme of the environmental movement and the driving force behind much of the environmental legislation at all levels of government. Over the last twenty years, much of the legislation (and litigation) has focused on control of toxic materials or leaving natural areas undeveloped and unexploited.... 1997
Jeffrey N. Gesell Customary Indigenous Law in the Mexican Juridical System 26 Georgia Journal of International and Comparative Law 643 (1997) The tragedy which we mourn today with all our pain, far from sowing more hatred and division among the Chiapans, should push all of us toward the path of rejecting violence, of understanding and of agreements for peace and social justice in the entire state of Chiapas. - Mexican President Ernesto Zedillo on the December 1997 massacre of 45... 1997
Lisa N. Bertrand David V. Carruthers, Indigenous Ecology and the Politics of Linkage in Mexican Social Movements, 17 Third World Q. 1007 (1996). 9 Georgetown International Environmental Law Review 524 (Winter, 1997) With the renewal of indigenous movements and resurgence of ancestral pride, many Latin American countries face a socio-environmental enigma: finding the delicate balance between contemporary environmentalism and indigenous resistance. The indigenous ecology movement synthesizes the two competing interests into one unified body, its primary purpose... 1997
Frank Pommersheim Democracy, Citizenship, and Indian Law Literacy: Some Initial Thoughts 14 Thomas M. Cooley Law Review 457 (Michaelmas Term, 1997) As Professor Cichon indicated, the title of my remarks in this late afternoon speech is Democracy, Citizenship, and Indian Law Literacy: Some Initial Thoughts. Yet, as I was waiting for my chance to speak, I thought I might retitle my presentation to something like Is There Any Light Left At the End of the Day? I do not usually speak last and... 1997
Raymond Cross , Elizabeth Brenneman Devils Tower at the Crossroads: the National Park Service and the Preservation of Native American Cultural Resources in the 21st Century 18 Public Land & Resources Law Review Rev. 5 (1997) What unites Western culture in all its phases, tying in with the ambivalence that produces the continuity of change, is a series of demythologizings and consequent 'losses of faith'-some gradual, some traumatic. Nothing is so characteristic of our traditions, with the result that we can say more truly of Western culture than of almost anything... 1997
John F. Petoskey Doing Business with Michigan Indian Tribes 76 Michigan Bar Journal 440 (May, 1997) Michigan has 11 tribal governments, nine of which are located in northern Michigan. Federal Indian tribes are governments characterized as sovereigns with unique aggregations of governmental power. Each tribal government has a particular federal statutory history that defines the scope of Indian country for that particular tribe. The high profile... 1997
Hari M. Osofsky Environmental Human Rights under the Alien Tort Statute: Redress for Indigenous Victims of Multinational Corporations 20 Suffolk Transnational Law Review 335 (Summer 1997) C1-2TABLE OF CONTENTS L1-2 L1-2Prologue:Corporate Irresponsibility in Ecuador and Indonesia I. Introduction II. Violations of the Law of Nations Under the Alien Tort Statute A. International Norm Crystallization Generally B. Requirements under the Alien Tort Statute 1. Dearth of Environmental Jurisprudence 2. Definable, Universal, and Obligatory... 1997
Jennifer McIver Environmental Protection, Indigenous Rights and the Arctic Council: Rock, Paper, Scissors on the Ice? 10 Georgetown International Environmental Law Review 147 (Fall, 1997) On September 19th, 1996, the eight Arctic States formally adopted the Declaration on the Establishment of the Arctic Council. The Arctic Council was established by its signatory states as a mechanism for addressing the common concerns and challenges faced by their governments and the people of the Arctic ... referr ing particularly to the... 1997
Gray B. Taylor Epa Lacks Authority to Approve Indian Tribes' Solid Waste Plans 6 South Carolina Environmental Law Journal 87 (Summer 1997) In Backcountry Against Dump v. Environmental Protection Agency, the United States Court of Appeals for the District of Columbia ruled that the federal Resource Conservation and Recovery Act (RCRA) does not give the Environmental Protection Agency (EPA) authority to approve Indian tribes' solid waste permitting programs. The appeals court vacated... 1997
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