AuthorTitleCitationSummaryYear
L. Scott Gould THE CONSENT PARADIGM: TRIBAL SOVEREIGNTY AT THE MILLENNIUM 96 Columbia Law Review 809 (May, 1996) C1-3Table of Contents Introduction . 810 I. The Drift Toward Consent . 815 A. The Doctrine of Inherent Sovereignty . 815 1. The Marshall Trilogy and Territorial Separation . 815 2. Infringement and Preemption as the Tests of Sovereignty . 822 B. The Doctrine of Trust Responsibility . 826 1. The Scope of Congressional Power over Tribes . 826 2. The... 1996
Joe Holland The Death Wish of Late Modern Euro- American Culture and the Spiritual Wisdom of the Ancient Native Peoples 9 Saint Thomas Law Review 59 (Fall 1996) We have forgotten who we are. We have forgotten who we are We have alienated ourselves from the unfolding of the cosmos We have become estranged from the movements of the earth We have turned our backs on the cycles of life. We have forgotten who we are. We have sought only our own security We have exploited simply for our own ends We have... 1996
Michael A. Burnett The Dilemma of Commercial Fishing Rights of Indigenous Peoples: a Comparative Study of the Common Law Nations 19 Suffolk Transnational Law Review 389 (Summer 1996) Cultures have clashed throughout history. When culturally distinct peoples conflict, the societal, legal, and political values of these respective cultures are seriously called into question. In contemporary society, the evolving disputes over traditional and commercial fishing rights of the world's indigenous populations present issues of... 1996
Naomi Mezey The Distribution of Wealth, Sovereignty, and Culture Through Indian Gaming 48 Stanford Law Review 711 (February, 1996) Gaming on Native American reservations under the Indian Gaming Regulatory Act (IGRA) has generated enormous revenues for some tribes, but also has engendered much controversy. In this note, Naomi Mezey argues that the redistributive effects of the statute, and hence a tribe's ability to benefit from the IGRA, depend on the cultural paradigm within... 1996
Robert Laurence The Dominant Society's Judicial Reluctance to Allow Tribal Civil Law to Apply to Non-indians: Reservation Diminishment, Modern Demography and the Indian Civil Rights Act 30 University of Richmond Law Review 781 (May, 1996) Begin at the beginning: there was a time, not so long ago as such things are reckonedsay, about half as long as there has been a country called Hungaryduring which only American Indians lived in and around what is now the Commonwealth of Virginia. A time when Europeans, Africans and Asians were entirely occupied with managing the affairs of... 1996
Jennifer M. Regis-Civetta The Effect of the Endangered Species Act on Tribal Economic Development in Indian Country 50 Washington University Journal of Urban and Contemporary Law 303 (Fall 1996) Long before the European expansion across the North American continent, Native Americans evolved complex relationships between tribes and the lands they occupied. The tribes depended upon hunting, fishing, and gathering to feed, clothe, and shelter their numbers. The ability to perform these activities has been characterized by the United States... 1996
Mireya Maritza PeÑa GuzmÁn The Emerging System of International Protection of Indigenous Peoples' Rights 9 Saint Thomas Law Review 251 (Fall 1996) If we had no understanding of ourselves, it would not have been possible to build a society that would maintain the equilibrium among its social consciousness, nature, and other human beings. Out of this understanding was born our laws. The indigenous peoples of the world have been the most faithful guardians of the vital ecosystems that ensure the... 1996
Tim Vollmann The Endangered Species Act and Indian Water Rights 11-FALL Natural Resources & Environment 39 (Fall, 1996) For decades it has been well understood in the arid West that Indian reservations are home to tribes with substantial unused reserved water rights with senior priority dates. Water resource development, especially of the federally subsidized nature, has had to take account of those rights, although such rights on most reservations have remained... 1996
Daniel I.S.J. Rey-Bear The Flathead Water Quality Standards Dispute: Legal Bases for Tribal Regulatory Authority over Non-indian Reservation Lands 20 American Indian Law Review 151 (1995-1996) C1-3Table of Contents I. Introduction. 152 II. Development of Adjudicatory Doctrines for Tribal-State Jurisdiction Disputes. 155 A. Historical Origins. 156 B. Development of Adjudicatory Doctrines in the Early Modern. 157 1. Infringement of Inherent Tribal Sovereignty. 158 2. Federal-Tribal Preemption. 160 C. White Mountain Apache Tribe v. Bracker... 1996
Christine D. Bakeis The Indian Child Welfare Act of 1978: Violating Personal Rights for the Sake of the Tribe 10 Notre Dame Journal of Law, Ethics & Public Policy 543 (1996) To live under the American Constitution is the greatest political privilege that was ever accorded to the human race. One of the promises of the American Constitution is that states will not enforce any law that abridges a citizen's privileges. The American Constitution also guarantees that states will not deprive any person of life, liberty, or... 1996
Alana J. DeGarmo The Indian Child Welfare Act: its Impact on Unknowing Adoptive Parents 17 Journal of Juvenile Law 32 (1996) The Indian Child Welfare Act (hereinafter ICWA or Act) was enacted in 1978, giving members of Native American tribes the right to adopt their members' children before those children can be placed in non-Indian homes. The law was passed in response to a long history of religious groups and well-meaning agencies separating Indian children from... 1996
Alma Soongi Beck The Makah's Decision to Reinstate Whaling: When Conservationists Clash with Native Americans over an Ancient Hunting Tradition 11 Journal of Environmental Law & Litigation 359 (1996) When the Makah Indian Nation announced in May 1995 its desire to reinstate its traditional whale hunt with an annual take of five gray whales, a right which the Makah had explicitly reserved in their 1855 Treaty with the United States, conservationists expressed nervousness about the impact a Makah hunt could have on global whale conservation. Some... 1996
Noah Sachs The Mescalero Apache Indians and Monitored Retrievable Storage of Spent Nuclear Fuel: a Study in Environmental Ethics 36 Natural Resources Journal 641 (Fall, 1996) The proposal of the Mescalero Apache Indians of New Mexico to host a nuclear waste storage facility raised difficult questions about political sovereignty, environmental justice, and democratic consent. While the proposal had numerous drawbacks and deserved to be opposed, many of the arguments used against it were conceptually flawed and... 1996
Robert H. Mclaughlin The Native American Graves Protection and Repatriation Act: Unresolved Issues Between Material Culture and Legal Definitions 3 University of Chicago Law School Roundtable 767 (1996) By enacting the Native American Graves Protection and Repatriation Act (NAGPRA) in 1990, Congress mandated that museums and federal agencies re-evaluate the concept of possession with respect to their collections of Native American objects of material culture. Specifically, museums and federal agencies must identify human remains and funerary... 1996
Tracy N. Zlock The Native American Tribe as a Client: an Ethical Analysis 10 Georgetown Journal of Legal Ethics 159 (Fall, 1996) On June 30, 1980, the United States Supreme Court granted a $105 million award to the Sioux Nation as compensation for a Fifth Amendment takings claim against the federal government for the Black Hills of South Dakota. The claim was filed pursuant to the Indian Claims Commission Act (ICCA), which for the first time allowed Native American tribes to... 1996
Peter M. Manus The Owl, the Indian, the Feminist, and the Brother: Environmentalism Encounters the Social Justice Movements 23 Boston College Environmental Affairs Law Review 249 (Winter, 1996) There were mass movements for social justice . to end slavery and for women's suffrage. But now all of those rights are threatened by . the abuse of the planet in which those rights might be exercised or implemented. And thus we must see in our fervor for rights that without the right to breath, nothing else really matters. The Reverend Jesse... 1996
Robert A. Williams, Jr. The People of the States Where They Are Found Are Often Their Deadliest Enemies: the Indian Side of the Story of Indian Rights and Federalism 38 Arizona Law Review 981 (Fall, 1996) There are many sides to the story of Indian rights and federalism. The United States Supreme Court's 1886 opinion in United States v. Kagama provides us with one view of the role of the states in our Federal Indian Law: Because of the local ill feeling, the people of the states where they are found are often their deadliest enemies. From their very... 1996
Brian M. Greene The Reservation Gambling Fury: Modern Indian Uprising or Unfair Restraint on Tribal Sovereignty? 10 BYU Journal of Public Law 93 (1996) In 1979 the Seminole Tribe of Florida became the first tribe in the nation to open a large-scale, high-stakes bingo operation. During the 1980s, Indian-sponsored gamblingfrom bingo parlors to Las Vegas-style casinosrapidly spread until one-third of the 330 reservations in the United States were participating. In just a little over a decade,... 1996
Jose J. Monsivais The Return of the White Buffalo: Taxation Issues Facing American Indian Tribes Conducting Gambling Enterprises on Tribal Lands 20 American Indian Law Review 399 (1995-1996) Approximately one million American Indians live on reservations in the United States. The responsibility for the overseeing and administering these reservations lies with the federal government through the Bureau of Indian Affairs, an arm of the Department of the Interior. This group of Americans is extremely dependent on the federal government for... 1996
William H. Rodgers, Jr. The Sense of Justice and the Justice of Sense: Native Hawaiian Sovereignty and the Second "Trial of the Century" 71 Washington Law Review 379 (April, 1996) The Congress . . . apologizes to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii on January 17, 1893 with the participation of agents and citizens of the United States, and the deprivation of the rights of Native Hawaiians to self-determination . . . . In 1993, Congress apologized to the... 1996
Karen S. Mcfadden The Stakes Are Too High to Gamble Away Tribal Self-government, Self-sufficiency, Ane Economic Development When Amending the Indian Gaming Regulatory Act 21 Journal of Corporation Law 807 (Summer 1996) I. Introduction. 808 II. Background. 809 III. The Indian Gaming Regulatory Act (IGRA). 810 A.Congressional Findings and Policies Behind the IGRA. 810 B.The National Indian Gaming Commission (NIGC). 811 C.Gaming Classes and State Control. 812 1.Exemption of Class I and II Gaming from State Control. 812 2.Tribal-State Class III Gaming Compacts. 812... 1996
Julian Burger The United Nations Draft Declaration on the Rights of Indigenous Peoples 9 Saint Thomas Law Review 209 (Fall 1996) In September 1996, the Government of Fiji hosted a Pacific Indigenous Peoples Workshop regarding the draft United Nations declaration on the rights of indigenous peoples (draft declaration). Similar consultations have taken place in other parts of the world as indigenous people, from Alaska to Chile and from Kenya to the Philippines, prepare for... 1996
Brian C. Lake The Unlimited Sovereign Immunity of Indian Tribal Businesses Operating Outside the Reservation: an Idea Whose Time Has Gone 1996 Columbia Business Law Review 87 (1996) In a seemingly ordinary business transaction, a distributor contracts to sell $177,000 worth of herbicides to a local agricultural company. Although the seller delivers the product as agreed, the agricultural company simply keeps the herbicides and refuses to pay the bill. When it attempts to file suit against the agricultural company in state... 1996
G. William Rice There and Back Again-an Indian Hobbit's Holiday "Indians Teaching Indian Law" 26 New Mexico Law Review 169 (Spring, 1996) All that is gold does not glitter, Not all those who wander are lost; The old that is strong does not wither, Deep roots are not reached by the frost, From the ashes a fire shall be woken, A light from the shadows shall spring; The truth again shall be spoken, Our songs once more we shall sing. Having only recently wandered into the academy from... 1996
Patrice H. Kunesh Transcending Frontiers: Indian Child Welfare in the United States 16 Boston College Third World Law Journal 17 (Winter, 1996) Let us put our minds together and see what kind of future we can build for our children. These words were spoken by Sitting Bull, a Hunkpapa Lakota leader, following his peoples' victory over the army of the United States at the Battle of Little Big Horn in 1876. In the struggle to protect the Lakota lands against colonial expansion, Sitting Bull... 1996
Christine A. Klein Treaties of Conquest: Property Rights, Indian Treaties, and the Treaty of Guadalupe Hidalgo 26 New Mexico Law Review 201 (Spring, 1996) All animals are equal But some animals are more equal than others. George Orwell The modern discourse concerning property rights has deep historical roots, for property has long been the object of heated passion, war, and conquest. Under our national lore, it is common knowledge that the United States acquired from Native American tribes some two... 1996
Rebecca Tsosie TRIBAL ENVIRONMENTAL POLICY IN AN ERA OF SELF-DETERMINATION: THE ROLE OF ETHICS, ECONOMICS, AND TRADITIONAL ECOLOGICAL KNOWLEDGE 21 Vermont Law Review 225 (Fall, 1996) No one is much without the earth in their hands and I pick up earth, touch the people the country Our future is tied to the land. No matter how far we advance as a society, that single fact persists and in some ways constrains our dreams for the future. For American Indian nations, the significance of the land is particularly compelling. Pushed to... 1996
Ryan H. Childs Water Law 31 Land and Water Law Review 425 (1996) On July 13, 1995, the Wyoming Supreme Court issued its latest ruling in the nineteen year old general adjudication of water rights in the Big Horn River System. This latest case, Big Horn IV, returns to an issue originally raised in Big Horn I. Namely, which non-Indian landowners in the Big Horn River System can claim Indian reserved water rights?... 1996
Lloyd Burton , Chris Cocklin Water Resource Management and Environmental Policy Reform in New Zealand: Regionalism, Allocation, and Indigenous Relations 7 Colorado Journal of International Environmental Law and Policy 75 (Winter, 1996) A millennium ago a small group of Polynesians embarked on one of the most dramatic voyages of exploration in the human history of the Pacific Basin. Departing from the present-day Cooks or perhaps the Society Islands, they sailed their large outriggers south and west across more than a thousand miles of uncharted and unknown open ocean. Their... 1996
Raymond Cross When Brendale Met Chevron: the Role of Federal Courts in the Construction of an Indian Environmental Law 1 Great Plains Natural Resources Journal J. 1 (Spring 1996) I. Introduction. 2 A. Montana's Indian Law Surprise. 3 B. The EPA's Administrative Law Surprise. 3 II. The Historical Context of Indian Environmental Law Disputes. 7 A. Background Considerations. 7 B. The Indian Wardship Doctrine as a Substantive Limitation on Tribal Regulatory Jurisdiction. 8 C. The EPA's Indian Environmental Policy That Supports... 1996
Michelle Zehnder Who Should Protect the Native American Child: a Philosophical Debate Between the Rights of the Individual Verses the Rights of the Indian Tribe 22 William Mitchell Law Review 903 (1996) Every child without regard to race, color, sex, language, religion, political or social origin, property, birth or other status shall be entitled: * To special protection to develop in a healthy and normal manner physically, mentally, morally, and socially with freedom and dignity; * To a name and nationality from birth; * To adequate nutrition,... 1996
Michelle Zehnder WHO SHOULD PROTECT THE NATIVE AMERICAN CHILD: A PHILOSOPHICAL DEBATE BETWEEN THE RIGHTS OF THE INDIVIDUAL VERSES THE RIGHTS OF THE INDIAN TRIBE 22 William Mitchell Law Review 903 (1996) Every child without regard to race, color, sex, language, religion, political or social origin, property, birth or other status shall be entitled: * To special protection to develop in a healthy and normal manner physically, mentally, morally, and socially with freedom and dignity; * To a name and nationality from birth; * To adequate nutrition,... 1996
Kevin J Worthen , Wayne R. Farnsworth Who Will Control the Future of Indian Gaming? "A Few Pages of History Are Worth a Volume of Logic" 1996 Brigham Young University Law Review 407 (1996) Reservation gaming is big business in the 1990s. Although almost nonexistent ten years ago, high-stakes gambling on Indian reservations is rapidly becoming the new buffalo--the staple of modern tribal economies. More than 200 of the nation's approximately 550 recognized Indian Tribes participate in some form of high-stakes reservation gaming.... 1996
by David L. Gregory William Strate, Associate Tribal Judge of the Tribal Court of the Three Affiliated Tribes of the Fort Berthold Indian Reservation, et Al. 1996-97 Preview of United States Supreme Court Cases 239 (12/23/1996) The scope of the jurisdiction of Native American tribal courts is subject to periodic calibration by Congress through legislation and by judicial decisionmaking through case law. In this case, the Supreme Court is asked to decide whether tribal or federal courts have jurisdiction in a personal injury lawsuit arising out of an automobile accident... 1996
Bruce M. Pendery Winner--1996 Student Writing Award, Native Home of Hope Conference, Wallace Stegner Center for Land, Resources, and the Environment, University of Utah College of Law Utah's School Trust Lands: Constitutionalized Single-purpose Land Management 16 Journal of Energy, Natural Resources,and Environmental Law 319 (1996) When Utah was admitted to the union in 1896, the United States granted approximately six million acres of federal public land to the new state to support its common schools. Those lands are scattered throughout the state in a seemingly random checkerboard pattern of 640 acre blocks of land. The checkerboard pattern, coupled with the fact most of... 1996
  Young Once, Indian Forever 1 U.C. Davis Journal of Juvenile Law & Policy 16 (Fall, 1996) Several years ago, a young woman with a striking Navajo appearance walked into the offices of the National Indian Justice Center to inquire about her Native American heritage. For purposes of this story, call her Jane. In a soft, deliberate voice, Jane recalled the history of her young life. She had been told that her biological mother was a young... 1996
Karen McBeth Chopra A Forgotten Minority an American Perspective: Historical and Current Discrimination Against Asians from the Indian Subcontinent 1995 Detroit College of Law at Michigan State University Law Review 1269 (Winter, 1995) INTRODUCTION. 1270 I HISTORICAL BACKGROUND. 1274 A. The First Wave. 1274 1. Anti-Immigration Pressures. 1278 2. The Indian Component in the Anti-Immigration Fervor. 1278 B. Establishing a Community. 1280 C. The Exclusion Acts. 1281 D. The Citizenship Color Bar and Denaturalization. 1285 1. What is White?. 1286 2. Effect on American Wives. 1287 E.... 1995
John Andrew Zuccotti A Native Returns: the Endangered Species Act and Wolf Reintroduction to the Northern Rocky Mountains 20 Columbia Journal of Environmental Law 329 (1995) On September 30, 1992, a Wyoming moose hunter named Jerry Kysar fired a lethal shot at the lead animal of a pack of five coyotes. Kysar was hunting high in the remote Teton Wilderness, an area just south of Yellowstone National Park, Wyoming, and part of the Yellowstone ecosystem. Covering vast areas of northwestern Wyoming, southwestern Montana,... 1995
Luis Angel Toro A People Distinct from Others: Race and Identity in Federal Indian Law and the Hispanic Classification in Omb Directive No.15 26 Texas Tech Law Review 1219 (1995) I. INTRODUCTION. 1219 II. DEFINITIONS OF TERMS. 1223 III. BIOLOGICAL RACE, DIRECTIVE NO. 15, AND THE IMMIGRANT ANALOGY. 1225 IV. RACE AND IDENTITY IN U.S. LAW AND INDIGENOUS TRADITION. 1230 V. RACE AND IDENTITY IN CONTEMPORARY JURISPRUDENCE. 1238 VI. DIRECTIVE NO. 15 AND THE SOCIAL CONSTRUCTION OF RACE. 1243 VII. CHICANOS AS A RACIALIZED MINORITY... 1995
Francis X. Santangelo A Proposal for the Equal Protection of Non-indians Practicing Native American Religions: Can the Religious Freedom Restoration Act Finally Remove the Existing Deference Without a Difference? 69 Saint John's Law Review 255 (Winter-Spring 1995) During Prohibition, members of the Roman Catholic church were statutorily permitted to drink wine during the Mass. Given the Catholic doctrine of transubstantiation (the sacred transformation of wine into the blood of Christ during the ceremony), this statute was necessary to safeguard Catholics' constitutional right to freedom of religion. The... 1995
Dianne Otto A Question of Law or Politics? Indigenous Claims to Sovereignty in Australia 21 Syracuse Journal of International Law and Commerce 65 (Spring 1995) I. Introduction . 65 II. Indigenous Discourses of Sovereignty . 68 A. The Emerging Narrative of a Post-Colonial Australia . 69 B. The Continuing Importance of Indigenous Sovereignty . 72 1. Sovereignty as Fundamental to Identity . 74 2. Sovereignty as the Means to International Personality . 75 3. Sovereignty as Acknowledgement of Indigenous... 1995
Tracy A. Diekemper Abrogating Treaty Rights under the Dion Test: Upholding Traditional Notions That Indian Treaties Are the Supreme Law of the Land 10 Journal of Environmental Law & Litigation 473 (1995) When the Native American Indians entered into treaties with the United States in the mid-1800's, many tribes expressly reserved certain rights, such as the right to fish and hunt. For example, several of the treaties entered into in 1854-55 with the tribes in the Pacific Northwest included nearly identical provisions, guaranteeing that: The... 1995
Antonia M. De Meo Access to Eagles and Eagle Parts: Environmental Protection V. Native American Free Exercise of Religion 22 Hastings Constitutional Law Quarterly 771 (Spring 1995) I. Introduction. 772 II. The Eagle. 773 A. As A National Symbol. 773 B. As Sacred to Native Americans. 774 C. As Needing Federal Protection. 778 III. Federal Restrictions on the Taking of Eagles. 780 A. The Eagle Protection Act. 780 B. The Migratory Bird Treaty Act. 782 C. The Endangered Species Act. 783 IV. The Federal Eagle Permit System. 785 A.... 1995
Mark Neath American Indian Gaming Enterprises and Tribal Membership: Race, Exclusivity, and a Perilous Future 2 University of Chicago Law School Roundtable 689 (1995) American Indian tribal gaming is, by some accounts, the fastest growing industry in the United States. In recent years, over two hundred of the nation's 544 federally-recognized tribes have introduced some form of gaming-- from small bingo halls to multimillion dollar casinos--on reservations or other tribal lands. In 1993, Indian gaming grossed... 1995
Thomas H. Boyd American Indian Law Desk-book, by the Conference of Western Attorneys General; Nicholas J. Spaeth, Chair, Editing Committee; University Press of Colorado, Niwot, Co, 1993 (Plus Annual Supplements). 481 Pages $49.95 42-OCT Federal Lawyer 46 (October, 1995) In his foreword, Nick Spaeth reminds us of the various themes with which we have viewed the struggle between white settlers and Indian tribes. These include admiration of the noble savage, fear and hatred of the marauding warriors. paternalism, tolerance, and respect. The result has been something between assimilation and segregation.... 1995
Sylvia F. Liu American Indian Reserved Water Rights: the Federal Obligation to Protect Tribal Water Resources and Tribal Autonomy 25 Environmental Law 425 (Spring, 1995) In the arid American West, the American Indian reserved water rights doctrine has been a source of conflict between tribal water users and state law appropriators. This Comment explores current disputes over the controversial practicably irrigable acreage (PIA) standard used to quantify the water right, including disputes over whether... 1995
Sylvia F. Liu AMERICAN INDIAN RESERVED WATER RIGHTS: THE FEDERAL OBLIGATION TO PROTECT TRIBAL WATER RESOURCES AND TRIBAL AUTONOMY 25 Environmental Law 425 (Spring, 1995) In the arid American West, the American Indian reserved water rights doctrine has been a source of conflict between tribal water users and state law appropriators. This Comment explores current disputes over the controversial practicably irrigable acreage (PIA) standard used to quantify the water right, including disputes over whether... 1995
Siegfried Wiessner American Indian Treaties and Modern International Law 7 St. Thomas Law Review 567 (Summer, 1995) One of the cardinal principles of international law, if not the rock on which it stands, is the notion that nation-states are bound to keep their word. Pacta sunt servanda has been hailed as the basic norm of the law of nations, the foundation of all prescription in an essentially coarchical, consent-based and consent-driven system. The... 1995
Jaya Gokhale An Indian Journey 13-FALL Delaware Lawyer 10 (Fall, 1995) In a previous life, I was a social scientist who studied Indian Untouchables (in Sanskrit, Asprusyathose who cannot be touched), those who occupied the bottom-most rungs of the Hindu hierarchy. Untouchables existed outside the classical varna (caste) order, were consigned by birth to perform the lowliest and most polluting tasks, and were... 1995
Michael C. Snyder An Overview of the Indian Child Welfare Act 7 St. Thomas Law Review 815 (Summer, 1995) With foresight, the United States Congress protected the most precious asset of Native Nations by enacting the Indian Child Welfare Act (ICWA). Congress' purpose in enacting the ICWA was to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families. To meet these two goals, the ICWA... 1995
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