| Author | Title | Citation | Summary | Year |
| Andrew M. Kanter |
The Yenaldlooshi in Court and the Killing of a Witch: the Case for an Indian Cultural Defense |
4 Southern California Interdisciplinary Law Journal 411 (Winter 1995) |
TABLE OF CONTENTS I. INTRODUCTION. 412 II. THE MORAL AND THEORETICAL BASIS FOR A CULTURAL DEFENSE. 416 A. Punishment Theories. 417 B. Notions of Plurality. 422 C. Counter-Arguments. 424 D. Forum Difficulties. 426 E. Conclusion. 428 III. THE MECHANICS OF AN INDIAN CULTURAL DEFENSE. 429 IV. INADEQUACY OF AVAILABLE DEFENSES. 432 A. Necessity. 432 B.... |
1995 |
| |
Title 25 -- Indians |
24 Southwestern University Law Review 717 (1995) |
CODE SECTION: § 164 ACTION: Unclaimed per capita and other individual payments of tribal trust funds held in trust by the United States will be restored to tribal ownership if for any reason such payments remain unclaimed -- TIME LIMIT, ACCRUAL: For a period of 6 years, from the date of the administrative directive to make payment; OR, 1 year, from... |
1995 |
| William M. Bryner |
Toward a Group Rights Theory for Remedying Harm to the Subsistence Culture of Alaska Natives |
12 Alaska Law Review 293 (12/1/1995) |
This Note argues that Alaska Natives' subsistence lifestyle is an essential element of their culture and should be protected as such by the law. After outlining alternate understandings of subsistence, the Note analyzes the current treatment of subsistence as culture in both federal and Alaska law. The Note contends that existing law does not... |
1995 |
| Richard Monette, James M. Grijalva, P.S. Deloria, Judith V. Royster, Rebecca Tsosie |
Treating Tribes as States under the Clean Water Act: the Good and the Bad |
71 North Dakota Law Review 497 (1995) |
MR. MONETTE: Good morning. Nice to see you all again. We have a slight change in the panel, as you can see. Let me just first mention that John Harbison has, I understand, taken ill and probably won't be with us today. So he could probably use some of our good thoughts. And Sam Deloria will sit in his place to help respond. Our topic is, as you can... |
1995 |
| Patrick Clarke |
Tribal Affiliation Based Employment Preferences: Is this an Allowable Practice under Title Vii's Indian Preference Provisions? |
20 Thurgood Marshall Law Review 291 (Spring, 1995) |
Poverty is the everyday life of the American Indian. No other group in American life is so victimized by poverty. The average income of Indian families on reservations is $1500 a year--unemployment is 7 or 8 times the national averagethe Indian life span of 42 years is far short of the national average of 62--Indian babies have only half as much... |
1995 |
| Patrick Clarke |
TRIBAL AFFILIATION BASED EMPLOYMENT PREFERENCES: IS THIS AN ALLOWABLE PRACTICE UNDER TITLE VII'S INDIAN PREFERENCE PROVISIONS? |
20 Thurgood Marshall Law Review 291 (Spring, 1995) |
Poverty is the everyday life of the American Indian. No other group in American life is so victimized by poverty. The average income of Indian families on reservations is $1500 a year--unemployment is 7 or 8 times the national averagethe Indian life span of 42 years is far short of the national average of 62--Indian babies have only half as much... |
1995 |
| James M. Grijalva |
Tribal Governmental Regulation of Non-indian Polluters of Reservation Waters |
71 North Dakota Law Review 433 (1995) |
With respect to natural resource management concerns, Mr. President, no one has greater respect and reverence for the land than the original inhabitants of this continent. Although there are differences among the tribes, we have a common set of beliefs and traditions regarding our responsibilities as caretakers for the natural world. In our... |
1995 |
| James D. Hill, Howard G. Arnett |
Understanding Indian Tribal Timber Sales |
9-WTR Natural Resources & Environment 38 (Winter, 1995) |
Timber harvesting strategies used in recent decades in many parts of the world have resulted in the decimation of forest ecosystems and have wreaked havoc upon expanses of lands formerly known for their biodiversity. As demand for wood products continues to increase and technological advances geared for the harvesting of timber keep pace, timber... |
1995 |
| Keith D. Nunes |
We Can Do . Better: Rights of Singular Peoples and the United Nations Draft Declaration on the "Rights of Indigenous Peoples" |
7 St. Thomas Law Review 521 (Summer, 1995) |
In the multiplication of European voyages of discovery and exploration between the years 1487 and 1780, the slow process of direct sea contact between regions and continents ultimately yielded a worldwide network of relationships for a new era, an era in which humankind continues to participate. North America was opened to European settlement as a... |
1995 |
| Christopher J. Moore |
What Is Good for the Goose Is Good for the Gambler: How the Indian Gaming Regulatory Act Fails to Abrogate State Immunity and Protects Tribal Immunity |
21 Ohio Northern University Law Review 1203 (1995) |
Gambling in the United States cuts across many political spectrums. It defies categorization. But there is no doubt that non-Indians want to gamble and that they will pay significant amounts of money to do so. Indian gaming has been estimated to produce $4 billion per year in gross revenues and $750 million per year in net revenues. This... |
1995 |
| Kirke Kickingbird |
What's past Is Prologue : the Status and Contemporary Relevance of American Indian Treaties |
7 St. Thomas Law Review 603 (Summer, 1995) |
If there is any subject related to American Indians of which the average American has any knowledge, it is Indian treaties. Those citizens who possess this passing knowledge of Indian history and American Indian law often dismiss Indian treaty rights because they believe in the myth of the broken treaty. This myth says that conduct on the part of... |
1995 |
| Erik W. Aamot-Snapp |
When Judicial Flexibility Becomes Abuse of Discretion: Eliminating the "Good Cause" Exception in Indian Child Welfare Act Adoptive Placements |
79 Minnesota Law Review 1167 (May, 1995) |
When the power [to grant an adoption] is used to remove an Indian child from the surrounding most likely to connect that child with his or her cultural heritage, that decision unintentionally continues the gradual genocide of the Indians in America. Congress passed the Indian Child Welfare Act of 1978 (ICWA) to stop the mass removal of Native... |
1995 |
| Mark E. Chandler |
A Link Between Water Quality and Water Rights?: Native American Control over Water Quality |
30 Tulsa Law Journal 105 (Fall, 1994) |
It is well settled that Indians have exclusive control over tribal lands, subject only to a superior power of the United States. It is also well settled that Indians have a right to a quantity of water that is sufficient for the reservation needs under a first in time, first in right system of water appropriation. An open question, however, is... |
1994 |
| Richard A. Monette |
A New Federalism for Indian Tribes: the Relationship Between the United States and Tribes in Light of Our Federalism and Republican Democracy |
25 University of Toledo Law Review 617 (1994) |
More than 200 years ago, relatively small groups of people lived a freespirited existence along the eastern seaboard of what is now the United States of America. Over time, they grew increasingly vocal about matters they believed violated their natural rights. Some alien power extended its rule over their territories. An oppressive force arrogantly... |
1994 |
| Richard A. Monette |
A NEW FEDERALISM FOR INDIAN TRIBES: THE RELATIONSHIP BETWEEN THE UNITED STATES AND TRIBES IN LIGHT OF OUR FEDERALISM AND REPUBLICAN DEMOCRACY |
25 University of Toledo Law Review 617 (1994) |
More than 200 years ago, relatively small groups of people lived a freespirited existence along the eastern seaboard of what is now the United States of America. Over time, they grew increasingly vocal about matters they believed violated their natural rights. Some alien power extended its rule over their territories. An oppressive force arrogantly... |
1994 |
| Judith V. Royster |
A Primer on Indian Water Rights: More Questions than Answers |
30 Tulsa Law Journal 61 (Fall, 1994) |
I. Introduction . 62 II. Origins of the Reserved Rights Doctrine . 63 III. Scope and Extent of Reserved Rights . 66 A. Waters Subject to the Right . 67 B. Priority Date . 70 C. Purposes of the Reservation . 71 D. Quantification of the Right . 74 E. Use of Reserved Water Rights . 78 F. Water Transfers and Water Marketing . 82 G. Water Quality . 85... |
1994 |
| Rennard Strickland , William M. Strickland |
A Tale of Two Marshalls: Reflections on Indian Law and Policy, the Cherokee Cases, and the Cruel Irony of Supreme Court Victories |
47 Oklahoma Law Review 111 (Spring, 1994) |
The history of the Cherokee Nation before the Supreme Court is marked off at each end by two important cases. The first is Worcester v. Georgia and its earlier companion case of Cherokee Nation v. Georgia; the most recent is the Arkansas Riverbed Case. Both have been hailed as tribal victories in which the Supreme Court found in favor of the... |
1994 |
| Bradley Hideo Keikiokalani Cooper |
A Trust Divided Cannot Stand--an Analysis of Native Hawaiian Land Rights |
67 Temple Law Review 699 (Summer 1994) |
The history of Hawaii and its people is the least known and possibly the most egregious of any in the United States. Most Americans do not know that Hawaii was taken by conquest, not discovery. On January 17, 1893, a company of United States Marines, at the request of United States Foreign Minister John L. Stephens, landed on the shores of Hawaii... |
1994 |
| John Arai Mitchell |
A World Without Tribes? Tribal Rights of Self-government and the Enforcement of State Court Orders in Indian Country |
61 University of Chicago Law Review 707 (Spring, 1994) |
A state court can generally assert jurisdiction over a civil suit arising out of Indian Country where state civil jurisdiction 1) is not preempted by federal law and 2) does not infringe upon tribal rights of self-government. The Supreme Court has declared that the infringement prong of this infringement-preemption test requires an analysis of both... |
1994 |
| Timothy S. Zahniser |
Alabama & Coushatta Tribes V. Big Sandy School District: the Right of Native American Public School Students to Wear Long Hair |
19 American Indian Law Review 217 (1994) |
Our people are eager to learn. They are proud of being American. They are proud of being Indians. After being confined to the back burner of legal issues for a number of years, Alabama & Coushatta Tribes v. Trustees of the Big Sandy School District reintroduced an issue which was very much boiling over in the Federal courts in the late 1960s and... |
1994 |
| Mark A. Bilut |
Albuquerque V. Browner, Native American Tribal Authority under the Clean Water Act: Raging like a River out of Control |
45 Syracuse Law Review 887 (1994) |
Introduction I. Statutory and Regulatory Background II. Factual Background of Albuquerque III. Authority of Indian Tribes to Adopt Standards More Stringent Than Required Under the Clean Water Act IV. EPA Authority in Approving or Disapproving Tribal Water Quality Standards A. EPA Authority to Disapprove Standards Under Section 510 B. EPA Authority... |
1994 |
| Gloria Valencia-Weber |
American Indian Law and History: Instructional Mirrors |
44 Journal of Legal Education 251 (June, 1994) |
For the student of American Indian law, insights multiply when one treats the underlying jurisprudence and the historical scholarship as mirrors of each other. I have taught American Indian law at two law schools (Tulsa and New Mexico) through a method that combines legal and historical materials. My experience has affirmed that the... |
1994 |
| Ann M. Hooker |
American Indian Sacred Sites on Federal Public Lands: Resolving Conflicts Between Religious Use and Multiple Use at El Malpais National Monument |
19 American Indian Law Review 133 (1994) |
A. Introduction American Indians are beginning to reassert their right to freely express their religious beliefs despite past European American attempts to suppress them. However, misunderstandings and conflicts persist in part because of basic differences between American Indian and European American religious beliefs. These differences become... |
1994 |
| Helen W. Winston |
An Anomaly Unknown: Supreme Court Application of International Law Norms on Indigenous Rights in the Cherokee Cases (1831-32) |
1 Tulsa Journal of Comparative & International Law 339 (Spring, 1994) |
[I] think it very clear that the Constitution neither speaks of them as states or foreign states, but as just what they were, Indian tribes; an anomaly unknown to the books that treat of states, and which the law of nations would regard as nothing more than wandering hordes, held together only by ties of blood and habit, and having neither laws or... |
1994 |
| Vicki J. Limas |
Application of Federal Labor and Employment Statutes to Native American Tribes: Respecting Sovereignty and Achieving Consistency |
26 Arizona State Law Journal 681 (Fall, 1994) |
As Native American tribal economies continue to develop and grow, tribal governments and businesses are providing additional revenues for tribal operations and significant sources of employment for tribal members and others. With increased employment opportunities, however, come increasing numbers of employment disputes. The federal government... |
1994 |
| Vicki J. Limas |
APPLICATION OF FEDERAL LABOR AND EMPLOYMENT STATUTES TO NATIVE AMERICAN TRIBES: RESPECTING SOVEREIGNTY AND ACHIEVING CONSISTENCY |
26 Arizona State Law Journal 681 (Fall, 1994) |
As Native American tribal economies continue to develop and grow, tribal governments and businesses are providing additional revenues for tribal operations and significant sources of employment for tribal members and others. With increased employment opportunities, however, come increasing numbers of employment disputes. The federal government... |
1994 |
| Lindsay A. Newbold |
Application of the Adea to Indian Tribes: Eeoc V. Fond du Lac Heavy Equipment & Construction Co., 986 F.2d 246 (8th Cir. 1993) |
46 Washington University Journal of Urban and Contemporary Law 381 (Summer, 1994) |
Indian tribes in the United States, while not considered independent sovereign nations, are entitled to certain rights of autonomy in their internal affairs. The autonomy of Indian tribes is somewhat limited in that Congress retains plenary power to modify or eliminate these rights of self-government. Yet when a law infringes on a specific right... |
1994 |
| Wes Williams, Jr. |
Changing Water Use for Federally Reserved Indian Water Rights: Wind River Indian Reservation |
27 U.C. Davis Law Review 501 (Winter, 1994) |
Introduction I. The Law A. Federally Reserved Water Rights B. Quantification C. Change of Use II. The Big Horn River Dispute A. Big Horn I B. Big Horn III 1. Justice Macy's Opinion 2. Justice Thomas' Opinion 3. Justice Cardine's Opinion III. Analysis of the Big Horn III Decision A. Justice Macy 1. Misplaced Reliance on Big Horn I 2. Failure to... |
1994 |
| Marc S. Feinstein |
Cheyenne River Sioux Tribe V. South Dakota, Indian Gaming, and the State's Eleventh Amendment Immunity: Where Will the Conflict in the Circuits Fuse? |
39 South Dakota Law Review 604 (1994) |
In Cheyenne River Sioux Tribe v. South Dakota, the Eighth Circuit Court of Appeals upheld the constitutionality of the Indian Gaming Regulatory Act reasoning that the Act makes Congress' intent to abrogate the states' Eleventh Amendment sovereign immunity unmistakably clear. This allows an Indian tribe to bring suit against a state for failing to... |
1994 |
| Robert Laurence |
Civil Procedure in Low Earth Orbit: Science Fiction, American Indians and Federal Courts |
24 New Mexico Law Review 265 (Spring, 1994) |
Is it not immediately obvious that following the Columbus quincentennary more attention should be paid to what is written in science fiction novels? Perhaps not. Those of us who teach, study and write about American Indian law are famous for our over-developed ability to see Indian issues in all areas of the law, indeed in all areas of life. Indian... |
1994 |
| Theresa Simpson |
Claims of Indigenous Peoples to Cultural Property in Canada, Australia, and New Zealand |
18 Hastings International and Comparative Law Review 195 (Fall, 1994) |
Cultural property is the subject of increasing international legal interest. Numerous nations have enacted domestic legislation to protect their own cultural property, and several multilateral treaties and bilateral agreements attempt to regulate its export and import. There is also a growing call for repatriation of significant cultural objects,... |
1994 |
| Nell Jessup Newton |
Compensation, Reparations, & Restitution: Indian Property Claims in the United States |
28 Georgia Law Review 453 (Winter 1994) |
Calls for restitution in Eastern Europe present legal scholars in the United States with an opportunity to reexamine the legal and moral justifications for laws of property distribution in general and laws permitting confiscation and mandating restitution in particular. Western legal and constitutional theory accepts that government may take... |
1994 |
| Eric K. Yamamoto , Moses Haia , Donna Kalama |
Courts and the Cultural Performance: Native Hawaiians' Uncertain Federal and State Law Rights to Sue |
16 University of Hawaii Law Review Rev. 1 (Summer, 1994) |
Police Seize 25 in Hilo Protest: Hawaiian Confrontation at Mall. So read the news headline in September, 1993. One hundred twenty Native Hawaiians in Hilo protested the State Department of Hawaiian Homelands' lease of 39 acres of trust Homelands to a non-Hawaiian commercial entity for the Prince Kuhio Plaza shopping mall. The protesting group,... |
1994 |
| John J. Yered |
Criminal Law -- Subject Matter Jurisdiction -- Native American Subject to Jurisdiction of United States Courts for Crimes Committed Against Another Native American on Indian Territories United States V. Markiewicz, 978 F.2d 786 (2d Cir. 1992). |
17 Suffolk Transnational Law Review 539 (Spring 1994) |
In the United States, federal and state governments have jurisdiction over crimes that occur within their borders. Native American tribes in the United States offer unique examples of limited sovereignty, by possessing control over internal relations, yet ultimately subject to federal regulation. In United States v. Markiewicz, the United States... |
1994 |
| Ernest Grumbles |
Defending Native Lands |
1 Wisconsin Environmental Law Journal 123 (Spring, 1994) |
The native peoples of North America have struggled to protect their lands from encroachment by uninvited guests since the arrival of Columbus. Now the danger to their land has shifted from human incursion to environmental threats such as mines, landfills and coal-burning plants both on and off reservation lands. Cries of environmental racism by... |
1994 |
| by Nell Jessup Newton and Christopher A. Karns |
Department of Taxation and Finance of New York, et Al. |
1993-94 Preview of United States Supreme Court Cases 253 (3/18/1994) |
Because Indian tribes are immune from most state taxes, Indian businesses have made lucrative profits by pricing tobacco sold in reservation smokeshops considerably lower than their non-Indian competitors who are subject to state taxes. Many non-Indians, who are not entitled to the immunity, also purchase cigarettes on reservations in order to... |
1994 |
| William V. Vetter |
Doing Business with Indians and the Three "S"es: Secretarial Approval, Sovereign Immunity, and Subject Matter Jurisdiction |
36 Arizona Law Review 169 (Spring, 1994) |
Indian tribes and individuals are no longer economically isolated. They are increasingly involved in diverse economic activities, including operating on-and off-reservation enterprises, exporting reservation-produced products and services, and purchasing goods and services from off-reservation suppliers. The number and value of economic contracts... |
1994 |
| Brian Abraham Wolf |
Eminent Domain |
23 Stetson Law Review 569 (Spring, 1994) |
The First District Court of Appeal held that the Florida Department of Environmental Regulation (DER), an administrative body, does not have the authority to review the decision of the condemnation authority concerning the reasonableness and necessity of condemnation. Id. at 553. The court also held that landowners have a substantial interest in... |
1994 |
| Ray Halbritter , Steven Paul Mcsloy , (Oneida Indian Nation of New York, Wolf Clan) |
Empowerment or Dependence? The Practical Value and Meaning of Native American Sovereignty |
26 New York University Journal of International Law & Politics 531 (Spring, 1994) |
She:go. That is an ancient word of address and how our Oneida people still greet one another. My purpose in writing this article is to relate some of the history of my people, the Oneida Indian Nation, one of the Six Nations of the Iroquois Confederacy (more properly referred to as the Haudenosaunee), and to describe the context in which we have... |
1994 |
| Victoria C. Arthaud |
Environmental Destruction in the Amazon: Can U.s. Courts Provide a Forum for the Claims of Indigenous Peoples? |
7 Georgetown International Environmental Law Review 195 (Fall, 1994) |
Although many in the United States have become aware of the near annihilation of Native American Indians by the settlers of the United States, we stand by and watch while indigenous peoples of other countries fall victim as their natural resources are exploited by companies from the United States. History books are replete with references to the... |
1994 |
| Deborah A. Geier |
Essay: Power and Presumptions; Rules and Rhetoric; Institutions and Indian Law |
1994 Brigham Young University Law Review 451 (1994) |
Pequot Indians' Casino Wealth Extends the Reach of Tribal Law, the headline read. The article described how the Mashantucket Pequots, a tiny Connecticut tribe, has enacted new laws and expanded its court system with the newly acquired wealth realized from the operation of its Foxwood Casino in Ledyard, Connecticut. The point of all this, tribal... |
1994 |
| Lawrence R. Baca |
Federal Indian Law from Marshall to Marshall |
41 Federal Bar News and Journal 542 (September, 1994) |
Since the last Indian Law issue of the Federal Bar News & Journal, justice and Indian country lost a great friend--Mr. Justice Thurgood Marshall. His contributions to the civil rights of all Americans are legendary and without equal among attorneys. He appeared before the Supreme Court on thirty-two occasions and in twenty-seven of these, his... |
1994 |
| Lawrence R. Baca |
Federal Indian Law from Marshall to Marshall |
41 Federal Bar News & Journal 543 (September, 1994) |
Cannon to the right of them, Cannon to left of them, Cannon in front of them Volleyed and thundered; Stormed at with shot and shell, While horse and hero fell. They that had fought so well Came through the jaws of Death, Back from the mouth of hell, All that was left of them, Left of six hundred. Of the 673 soldiers who, on October 25, 1854,... |
1994 |
| Claire E. Dineen |
Fetal Alcohol Syndrome: the Legal and Social Responses to its Impact on Native Americans |
70 North Dakota Law Review Rev. 1 (1994) |
A Native American mother gave the following poignant testimony before Congress in 1992 about being the mother of a child with fetal alcohol syndrome: My name is Jill Plumage. I am a Native American, being an enrolled member of the Assinboine and Gros Ventre tribes of the Fort Belknap Indian Reservation in Montana. I am the mother of a sixteen year... |
1994 |
| Kip I. Plankinton |
Final Regulations Implementing the Indian Mineral Development Act |
23 Colorado Lawyer 2119 (September, 1994) |
On March 30, 1994, the Bureau of Indian Affairs (BIA) of the Department of the Interior (DOI) published final regulations implementing the Indian Mineral Development Act (IMDA). The final regulations were published in 59 Fed. Reg. 14,960 (1994), and will appear at 25 C.F.R. Part 225. They are intended to foster the development of Indian-owned... |
1994 |
| Janet C. Neuman , Pamela G. Wiley |
Hope's Native Home: Living and Reading in the West |
24 Environmental Law 293 (1994) |
In an essay entitled Hearing Silence: Western Myth Reconsidered, Marilynne Robinson writes, From my memory and my experience, I conclude that the true, abiding myth of the West is that there is an intense, continuous, and typically wordless conversation between attentive people and the landscape they inhabit, and that this can be the major... |
1994 |
| Russel Lawrence Barsh |
Iii. Indigenous Peoples' Perspectives on Population and Development |
21 Boston College Environmental Affairs Law Review 257 (Winter, 1994) |
Efforts to slow the adverse impact of humanity on the planetary environment have increasingly targetted population growth. While the justification for this approach seems clear in the sprawling slums of Third World cities, developing countries, where the greatest growth in population is occurring, contend that the population crisis is a ploy to... |
1994 |
| Brian D. Gallagher |
Indian Child Welfare Act of 1978: the Congressional Foray into the Adoption Process |
15 Northern Illinois University Law Review 81 (Fall, 1994) |
In most litigation involving children, including adoptions, the party hearing the case (or facilitating the adoption) is required to balance the interests of child with the interests of the parents. Congress, however, has introduced a third party, the tribe, in the case of adoptions involving American Indian children. The Indian Child Welfare Act... |
1994 |
| Senator Jerry Moran |
Indian Gambling |
63-AUG Journal of the Kansas Bar Association 28 (August, 1994) |
Although the legal aspects of Indian gaming are probably not of great importance to most members of the Kansas bar, the Legislature was again called upon to decide matters of public policy based upon an understanding of the unclear legal requirements of the Indian Gaming Regulatory Act (IGRA). 25 U.S.C. §2701 et seq. As it did in 1993, the Kansas... |
1994 |
| Susan Lope |
Indian Giver: the Illusion of Effective Legal Redress for Native American Land Claims |
23 Southwestern University Law Review 331 (1994) |
No white person or persons shall be permitted to settle upon or occupy any portion of the territory, or without consent of Indians to pass through the same. The United States has a long history of recognizing Native American title to land and taking it away in the blink of an eye. In the past, the United States has used its power to coerce Native... |
1994 |