| Author | Title | Citation | Summary | Year |
| Christopher A. Crain |
Free Exercise of Religion and Indian Burial Grounds--lyng V. Northwest Indian Cemetery Protective Association, 108 S. Ct. 1319 (1988) |
12 Harvard Journal of Law & Public Policy 246 (Winter, 1989) |
Sounding suspiciously similar to their supposed ideological opponents, the conservative members of the Supreme Court proved themselves amenable to expansive interpretation of the First Amendment last term in Hustler v. Falwell. But students of the Court should hardly expect a broadening of all First Amendment protections in future cases. Whatever... |
1989 |
| Avian Soifer |
Freedom of Association: Indian Tribes, Workers, and Communal Ghosts |
48 Maryland Law Review 350 (1989) |
You truly do me a great honor by inviting me to give the Sobeloff Lecture. I am particularly pleased to give this lecture because of who my predecessors have been and, even more, because of what kind of lawyer, judge, and mensch Judge Sobeloff was. It is no exaggeration to say that to speak of Judge Simon E. Sobeloff today, nearly fifteen years... |
1989 |
| Leo Gross, Harry A. Inman, W. Michael Reisman |
Harnessing International Law to Restrain and Recapture Indigenous Spoliations |
83 American Journal of International Law 56 (January, 1989) |
The ritual of condemnation of foreign corporations' spoliations of the resources of developing countries and their elevation to the level of international concern have obscured the problem of spoliations by national officials of the wealth of the states of which they are temporary custodians. The pathology is not restricted to developing countries.... |
1989 |
| Meade Emory, Robert A. Warden |
Income Taxation of Distributions by Alaska Native Corporations an Ambiguity in Need of Clarification |
64 Washington Law Review 551 (July, 1989) |
In 1971, Congress passed the Alaska Native Claims Settlement Act (ANCSA) to provide compensation for extinguishing Native land claims in Alaska. ANCSA created a system of village corporations that received money and land as compensation, and are to distribute the compensation to shareholders. The Internal Revenue Service (IRS'),... |
1989 |
| Thomas L. Wilson |
Indian Gaming and Economic Development on the Reservation |
68 Michigan Bar Journal 380 (May, 1989) |
here are seven federally recognized Indian tribes in Michigan located on reservations of varying sizes throughout the state. All of these tribes are representatives of the Three Fires (Chippewa, Ottawa or Potawatomi), and each has a similar history of geography, resources, treaties and economic development. It is therefore not surprising that each... |
1989 |
| John Fredericks III |
Indian Lands: Financing Indian Agriculture: Mortgaged Indian Lands and the Federal Trust Responsibility |
14 American Indian Law Review 105 (1989) |
Congress' enactment of the General Allotment Act in 1887 marked the beginning of a new era in federal Indian policy and a dramatic change in the communal property concepts of Indian tribes. Under the Act individual tribal members became owners of parcels of agricultural and grazing lands on their respective Indian reservations. Each reservation was... |
1989 |
| Curtis Berkey |
Indian Nations under Legal Assault |
16-WTR Human Rights 18 (Winter 1989) |
During the last ten years, the sovereign authority of American Indian governments has come under legal attack. On many reservations, non-Indians comprise a large part of the population, and Indian governments naturally assert authority over them as part of the inherent and historic power of territorial self-government. Non-Indians are increasingly... |
1989 |
| James E. Torgerson |
Indians Against Immigrants-old Rivals, New Rules: a Brief Review and Comparison of Indian Law in the Contiguous United States, Alaska, and Canada |
14 American Indian Law Review 57 (1989) |
For decades the native peoples of North America resisted the engulfing surge of European settlers. The struggle continues today, though the battle has moved from deserts and woodlands to courts and legislatures. Today it is a battle of legal rights, fought with words, not weapons. For the past century, natives have waged this battle with varying... |
1989 |
| Joshua D. Rievman |
Judicial Scrutiny of Native American Free Exercise Rights: Lyng and the Decline of the Yoder Doctrine |
17 Boston College Environmental Affairs Law Review 169 (Fall, 1989) |
[T]he danger to the continued existence of an ancient religious faith cannot be ignored simply because of the assumption that its adherents will continue to be able, at considerable sacrifice, to relocate in some more tolerant State or country or work out accommodations under threat of criminal prosecution. Forced migration of religious minorities... |
1989 |
| Charles F. Wilkinson |
Land Tenure in the Pacific: the Context for Native Hawiian Land Rights |
64 Washington Law Review 227 (April, 1989) |
The Hawaiian Islands evoke powerful images in the American public conscience. Lying two thousand miles off the shores of San Francisco, in the eastern half of the North Pacific, the islands were forged by volcanic action. Hawai'i is a land of extremes. On the island of Hawai'i, Mounts Mauna Kea and Mauna Loa rise nearly 14,000 feet above sea level.... |
1989 |
| Donald Falk |
Lyng V. Northwest Indian Cemetery Protective Association: Bulldozing First Amendment Protection of Indian Sacred Lands |
16 Ecology Law Quarterly 515 (1989) |
The United States Supreme Court's decision in Lyng v. Northwest Indian Cemetery Protective Association dramatically curtailed the ability of American Indians to preserve sacred sites on federally owned public lands. A five to three majority reversed lower court decisions that had enjoined construction of the Gasquet-Orleans Road (G-O Road) through... |
1989 |
| S. Alan Ray |
Lyng V. Northwest Indian Cemetery Protective Association: Government Property Rights and the Free Exercise Clause |
16 Hastings Constitutional Law Quarterly 483 (Spring, 1989) |
The Free Exercise Clause of the First Amendment guarantees that Congress shall make no law ... prohibiting the free exercise [of religion]. In the past, the United States Supreme Court has interpreted this clause to mean that religious practices are shielded from governmental interference absent a compelling regulatory interest. In a recent case,... |
1989 |
| Stephen McAndrew |
Lyng V. Northwest: Closing the Door to Indian Religious Sites |
18 Southwestern University Law Review 603 (1989) |
The first amendment to the Constitution provides that Congress shall make no law . prohibiting the free exercise [of religion]. The United States Supreme Court has held that the first amendment's free exercise clause prohibits any government activity that has a coercive effect on a religion or religious practice. The government activity need... |
1989 |
| Patrick T. Noonan |
Mining Desecration and the Protection of Indian Sacred Sites: a Lesson in First Amendment Hurdling |
50 University of Pittsburgh Law Review 1131 (Summer, 1989) |
The United States Department of the Interior currently recognizes the existence of over four hundred Indian tribes. While the American Indian may be a deprived minority group, in at least two areas notable exceptions persist: land and natural resources. Indian land comprises approximately fifty-one million acres or 2.2 percent of all land in the... |
1989 |
| John Gillingham |
Native American First Amendment Sacred Lands Defense: an Exercise in Judicial Abandonment |
54 Missouri Law Review 777 (Summer, 1989) |
In Lyng v. Northwest Indian Cemetery Protective Ass'n, the Court upheld the government's right to build a road and harvest timber on land considered sacred by three American Indian tribes. The Court's action in Lyng appears to effectively preclude the possibility of future suits against the government by American Indian plaintiffs attempting to... |
1989 |
| Nancy Akins |
New Direction in Sacred Lands Claims: Lyng V. Northwest Indian Cemetery Protective Association |
29 Natural Resources Journal 593 (Spring, 1989) |
In Lyng v. Northwest Indian Cemetery Protective Association, the United States Supreme Court considered whether an American Indian group could successfully challenge plans to build a road and harvest timber on federally owned lands that are traditional sacred grounds. The Court found that a federal action may interfere or virtually destroy the... |
1989 |
| Carl Ullman |
New Players in the Public Borrowing Game: Tax and Sovereignty Considerations as Freely Associated States and Indian Tribes Approach Wall Street |
11 University of Hawaii Law Review 111 (Fall, 1989) |
In recent years public borrowing in the United States has grown dramatically as authorities at all levels find themselves in greater need of significant capital accumulations in order to meet the needs of constituencies that have been either assigned to them or secured to them by the electoral process. This fiscal activity, encouraged by favorable... |
1989 |
| Kurt J. Lindower |
Noerr-pennington Antitrust Immunity and Private Standard-setting: Allied Tube & Conduit Corp. V. Indian Head, Inc., 108 S. Ct. 1931 (1988) |
58 University of Cincinnati Law Review 341 (1989) |
The National Fire Protection Association (NFPA) is a private standard-setting organization which promulgates several product standards and codes, including the National Electric Code (Code). The Code is revised every three years through a consensus process at the NFPA's annual meeting and is routinely adopted by many state and local governments... |
1989 |
| Philip P. Frickey |
Scholarship, Pedagogy, and Federal Indian Law |
87 Michigan Law Review 1199 (May, 1989) |
What follows is largely a review in search of a book. That alone hardly makes this essay unique, since law reviews publish a wide variety of things under the rubric of book reviews. Yet using a nutshell even as a point of departure for a broader discussion about a field of law will probably strike many as atypical, if not bizarre. Because nutshells... |
1989 |
| Katherine B. Crawford |
State Authority to Tax Non-indian Oil & Gas Production on Reservations: Cotton Petroleum Corp. V. New Mexico |
1989 Utah Law Review 495 (1989) |
In Cotton Petroleum Corp. v. New Mexico, the United States Supreme Court upheld oil and gas severance and production taxes imposed by the State of New Mexico against a non-Indian producer operating on an Indian reservation. The Court upheld the state taxes even though the tribe imposed severance taxes on the same activity. Although the Court has... |
1989 |
| Susan M. Williams |
State Taxation on Indian Reservations: the Impact of Cotton Petroleum Corporation V. New Mexico |
36 Federal Bar News and Journal 431 (November, 1989) |
On April 25, 1989 the United States Supreme Court issued a landmark decision in federal Indian law. By a vote of six to three, the Court held in Cotton Petroleum Corp. v. New Mexico, that the state of New Mexico validly may impose severance taxes on the on-reservation production of oil and gas by non-Indian lessees even though production also is... |
1989 |
| David S. Case |
Subsistence and Self-determination: Can Alaska Natives Have a More "Effective Voice"'? |
60 University of Colorado Law Review 1009 (1989) |
To many people the term subsistence' connotes the bare eking out of an existence, a marginal and generally miserable way of life. That is not, however, the standard dictionary definition of the term, nor is it the way in which the word is used in Alaska. There subsistence has come to stand for a class of hunting and fishing rights that, under... |
1989 |
| Frank R. Pommersheim |
THE CRUCIBLE OF SOVEREIGNTY: ANALYZING ISSUES OF TRIBAL JURISDICTION |
31 Arizona Law Review 329 (April, 1989) |
Tribal courts are of growing significance and importance throughout Indian country. This is especially true in light of the recent United States Supreme Court decisions in National Farmers Union Insurance Cos. v. Crow Tribe of Indians and Iowa Mutual Insurance Co. v. LaPlante, which hold that tribal courts are the primary forums for adjudicating... |
1989 |
| Roger A. Tellinghuisen |
The Indian Child Welfare Act of 1978: a Practical Guide with [Limited] Commentary |
34 South Dakota Law Review 660 (1988/1989) |
Until 1978, the states had been recognized as possessing broad, seemingly exclusive, jurisdiction over domestic relations and custody of their children-- at least outside of Indian country. In 1978, however, Congress enacted the Indian Child Welfare Act which thrust federal procedural and substantive law upon state courts in custody proceedings... |
1989 |
| Michelle L. Lehmann |
The Indian Child Welfare Act of 1978: Does it Apply to the Adoption of an Illegitimate Indian Child? |
38 Catholic University Law Review 511 (Winter, 1989) |
Congress enacted the Indian Child Welfare Act of 1978 (ICWA), in response to a crisis in which public and private agencies removed Indian children from their homes more frequently than non-Indian children. The ICWA seeks to remedy this disparity of placement in foster homes and adoptive homes by providing the Indian child's tribe with jurisdiction... |
1989 |
| Patrice Kunesh-Hartman |
The Indian Welfare Act of 1978: Protecting Essential Tribal Interests |
60 University of Colorado Law Review 131 (1989) |
The young Indian girl spoke quietly: I can remember [the welfare worker] coming and taking some of my cousins and friends. I didn't know why and I didn't question it. It was just done and it had always been done . . .. This rending scene has been repeated with bureaucratic regularity in the lives of thousands of Indian children who, without... |
1989 |
| Robert N. Clinton |
The Proclamation of 1763: Colonial Prelude to Two Centuries of Federal-state Conflict over the Management of Indian Affairs |
69 Boston University Law Review 329 (March, 1989) |
History is a cyclic poem written by Time upon the memories of man. PERCY BYSSHE SHELLEY On October 7, 1763225 years agothe British colonial government issued the famous Proclamation of 1763. This important document restructured the management of Indian affairs in the original thirteen states, Canada, and Florida. Additionally, the Proclamation... |
1989 |
| Margaret B. Bowman |
The Reburial of Native American Skeletal Remains: Approaches to the Resolution of a Conflict |
13 Harvard Environmental Law Review 147 (1989) |
The backhoe operator directed his shovel into the earth. Construction of the building's foundation was nearly completed. Subdenly, the operator felt his shovel hit something harder than the soft earth. He looked into pit and saw something unusual protruding from the side of the pit where he was digging. Getting off his backhoe and moving closer, he... |
1989 |
| Jeri Beth K. Ezra |
The Trust Doctrine: a Source of Protection for Native American Sacred Sites |
38 Catholic University Law Review 705 (Spring, 1989) |
Sacred sites constitute an integral part of Native American indigenous religion. In the past, Native Americans have challenged encroachment on these sites by relying on the free exercise clause of the first amendment. Invariably, those challenges failed. Given the United States Supreme Court's recent decision in Lyng v. Northwest Indian Cemetery... |
1989 |
| Sybil R. Kisken |
The Uncertain Legal Status of Alaska Natives after Native Village of Stevens V. Alaska Management & Planning: Exposing the Fallacious Distinctions Between Alaska Natives and Lower 48 Indians |
31 Arizona Law Review 405 (1989) |
When a government . . . does not live up to its commitments and obligations to Native people . . . no rights are secure. In December 1987, the United States Senate created a special committee to determine whether the federal government is adequately fulfilling its trust responsibility to Indian tribes. The mandate is general and the committee is... |
1989 |
| S. Caroline Malone |
Tribal Power over Non-indians: Tribal Courts at a Civil Crossroads Twin City Construction Company V. Turtle Mountain Band of Chippewa Indians |
42 Arkansas Law Review 1027 (1989) |
Questions about the limits of Indian sovereignty have beset courts for over a century. While issues of a tribal court's criminal jurisdiction over a non-Indian, Indian power to regulate hunting and fishing on parcels of reservation land owned in fee by non-Indians, and a tribe's power to tax non-Indians, have all been settled by the United States... |
1989 |
| Russel Lawrence Barsh |
United Nations Seminar on Indigenous Peoples and States |
83 American Journal of International Law 599 (July, 1989) |
A recent meeting of governmental and indigenous nongovernmental experts in Geneva paved the way for more direct indigenous participation in United Nations decision making, and challenged the international community to harness multilateral development assistance for the promotion of indigenous peoples' rights. Organizing a seminar on the effects of... |
1989 |
| Stan Watts |
Voluntary Adoptions under the Indian Child Welfare Act of 1978: Balancing the Interests of Children, Families, and Tribes |
63 Southern California Law Review 213 (November, 1989) |
For nearly five hundred years the Native American Indian tribes of North America have struggled to maintain their unique cultural lifestyles. They have been dispossessed by land fraud, decimated by foreign diseases, subjugated by superior military technology, oppressed by a corrupt bureaucracy, and manipulated by misguided reformers, yet the tribes... |
1989 |
| Kathryn A. Black , David H. Bundy , Cynthia Pickering Christianson , Cabot Christianson |
When Worlds Collide: Alaska Native Corporations and the Bankruptcy Code |
6 Alaska Law Review 73 (6/1/1989) |
The Alaska Native Claims Settlement Act (ANCSN), historic legislation intended to settle the aboriginal land claims and titles of Alaska Natives, was enacted by Congress in 1971 after many years of debate and discussion on the best method of resolving Native claims. Though filed with detail, the basic theme of ANCSA is straightforward. In... |
1989 |
| Paul A. Matteoni |
Alaskan Native Indian Villages: the Question of Sovereign Rights |
28 Santa Clara Law Review 875 (Fall, 1988) |
The judiciary of Alaska is confronted with independent Native Indian groups demanding enforcement of claims to sovereign rights. Despite numerous opportunities afforded in recent cases, the Alaskan courts have been unwilling to rule directly on this issue. These Alaskan Native Indian groups believe they are entitled to the identical rights,... |
1988 |
| Michael J. Dale |
American Indians, Time and the Law: Native Societies in a Modern Constitutional Democracy by Charles F. Wilkinson New Haven: Yale University Press. 1987. Pp. Ix, 219. $18.50. |
49 University of Pittsburgh Law Review 591 (Winter, 1988) |
In the late 1950s, Hugh Lee, an Indian trader operating the Ganado Trading Post on the Navajo Reservation in northeastern Arizona, sold goods on credit to Paul and Lorena Williams, members of the Navajo Tribe who lived on the reservation. When the Williams failed to pay for the goods, Lee brought suit in the Superior Court of Apache County,... |
1988 |
| Charles F. Wilkinson |
Civil Liberties Guarantees When Indian Tribes Act as Majority Societies: the Case of the Winnebago Retrocession |
21 Creighton Law Review 773 (1987/1988) |
When Indian law intersects the larger body of jurisprudence, it usually angles in from an off direction. One result is that legal rules at play in Indian country typically vary from American law as it operates generally. Thus, special principles apply within Indian reservations in many fields of law, including criminal and civil jurisdiction, tort... |
1988 |
| Charles F. Wilkinson |
CIVIL LIBERTIES GUARANTEES WHEN INDIAN TRIBES ACT AS MAJORITY SOCIETIES: THE CASE OF THE WINNEBAGO RETROCESSION |
21 Creighton Law Review 773 (1987/1988) |
When Indian law intersects the larger body of jurisprudence, it usually angles in from an off direction. One result is that legal rules at play in Indian country typically vary from American law as it operates generally. Thus, special principles apply within Indian reservations in many fields of law, including criminal and civil jurisdiction, tort... |
1988 |
| Glenn Ching |
Dedman V. Board of Land and Natural Resources: Native Hawaiian Sacred Site Claims |
10 University of Hawaii Law Review 365 (Winter, 1988) |
In Dedman v. Board of Land and Natural Resources, the Hawaii Supreme Court held that geothermal development of an area considered sacred by Native Hawaiian worshippers of the volcano fire goddess, Pele, was not an unconstitutional infringement of their rights to exercise freely their religion as guaranteed by the first amendment to the United... |
1988 |
| Thomas Riley |
Federal Conservation Statutes and the Abrogation of Indian Hunting and Fishing Rights: United States V. Dion |
58 University of Colorado Law Review 699 (Winter, 1988) |
In United States v. Dion, the United States Supreme Court confronted for the first time the potential conflict between federal conservation statutes of general application and Indian on-reservation hunting and fishing rights. The specific issues of statutory interpretation which were presented to the Court were whether the Bald Eagle Protection Act... |
1988 |
| Judith V. Royster , Rory SnowArrow Fausett |
Fresh Pursuit onto Native American Reservations: State Rights 'To Pursue Savage Hostile Indian Marauders Across the Border' |
59 University of Colorado Law Review 191 (Spring, 1988) |
L1-3TABLE OF CONTENTS I. Introduction. 192 II. Criminal Jurisdiction. 196 A. Off-Reservation Jurisdiction. 196 B. Jurisdiction Within Reservation Boundaries. 198 1. Tribal Jurisdiction. 199 2. State and Federal Jurisdiction. 209 a. Public Law 280 Reservations. 210 b. Non-Public Law 280 Reservations. 220 3. 223 C. On-Reservation Arrest for... |
1988 |
| Judith V. Royster , Rory SnowArrow Fausett |
FRESH PURSUIT ONTO NATIVE AMERICAN RESERVATIONS: STATE RIGHTS 'TO PURSUE SAVAGE HOSTILE INDIAN MARAUDERS ACROSS THE BORDER' |
59 University of Colorado Law Review 191 (Spring, 1988) |
L1-3TABLE OF CONTENTS I. Introduction. 192 II. Criminal Jurisdiction. 196 A. Off-Reservation Jurisdiction. 196 B. Jurisdiction Within Reservation Boundaries. 198 1. Tribal Jurisdiction. 199 2. State and Federal Jurisdiction. 209 a. Public Law 280 Reservations. 210 b. Non-Public Law 280 Reservations. 220 3. Summary. 223 C. On-Reservation Arrest for... |
1988 |
| Richard W. Hughes |
Indian Law |
18 New Mexico Law Review 403 (Winter, 1988) |
The field of Indian Lawan amalgam of statutory and decisional law that arises out of the special and unique relationship between Indian tribes and the federal government has been treated in the annual Survey issue only twice before. It inclusion at all may seem odd: the field is one of federal law, as to which state court decisions are not... |
1988 |
| Connie K. Haslam |
Indian Sovereignty: Confusion Prevails-california V. Cabazon Band of Mission Indians, 107 S Ct. 1083 (1987). |
63 Washington Law Review 169 (January, 1988) |
The courts have failed to give the Indian tribes of the United States a straight answer on the boundaries of Indian sovereignty. The predominant issue before the courts is how to balance the disparate interests of the federal government, the states, and the tribes themselves. The courts have battled to balance the interests of each party involved... |
1988 |
| Jean Pendleton |
Iowa Mutual Insurance Co. V. Laplante and Diversity Jurisdiction in Indian Country: What If No Forum Exists? |
33 South Dakota Law Review 528 (1987/1988) |
The United States Supreme Court, in Iowa Mutual Insurance Co. v. LaPlante, has decided that before a federal court can exercise diversity jurisdiction over causes of action arising in Indian Country, tribal court must first determine their own jurisdiction. While this important jurisdictional question has now been settled, the Supreme Court failed... |
1988 |
| Lee Herold Storey |
Leasing Indian Water off the Reservation: a Use Consistent with the Reservation's Purpose |
76 California Law Review 179 (January, 1988) |
The extent of permissible Indian water use in the United States is determined by the Indian reserved rights' doctrine, pronounced in Winters v. United States. The Supreme Court there ruled that Indian water rights were impliedly reserved at the time of the reservation's creation for the benefit of the Indians, and for a use necessary to fulfill... |
1988 |
| Peggy Healy |
Lyng V. Northwest Indian Cemetery Protective Association: a Form-over-effect Standard for the Free Exercise Clause |
20 Loyola University of Chicago Law Journal 171 (Fall, 1988) |
Even if we assume that . . . the G-O road will virtually destroy the Indians' ability to practice their religion . . . the Constitution simply does not provide a principle that could justify upholding respondents' legal claims. With that cavalier statement, the Supreme Court in Lyng v. Northwest Indian Cemetery Protective Association proceeded to... |
1988 |
| David H. Getches |
Management and Marketing of Indian Water: from Conflict to Pragmatism |
58 University of Colorado Law Review 515 (Winter, 1988) |
Water remains the most vitally important resource of nearly all Indian tribes. It is the touchstone of Native American cultures, linking today's and tomorrow's Indians with their early fellow tribesmen who drank, fished, and drew irrigation water from the same waterways. The might and mystery of riversfrom the Big Horn to the Colorado, from the... |
1988 |
| Robert Laurence |
Martinez, Oliphant and Federal Court Review of Tribal Activity under the Indian Civil Rights Act |
10 Campbell Law Review 411 (Summer, 1988) |
I. INTRODUCTION. 412 II. OVERRULING Oliphant. 415 III. OVERRULING Martinez. 427 A. An ICRA Plaintiff Must First Exhaust Her Tribal Remedies. 430 B. There Should Be a Meaningful Amount-In-Controversy Requirement. 432 C. Money Damages Should Not Be Recovered Against the Tribe. 433 D. Federal Court Review Should Be on the Tribal Court Record, If... |
1988 |
| H. Barry Holt |
Property Clause Regulation off Federal Lands: an Analysis, and Possible Application to Indian Treaty Rights |
19 Environmental Law 295 (Winter, 1988) |
I. INTRODUCTION. 295 II. EXTERNAL REGULATION UNDER THE PROPERTY CLAUSE. 296 A. Generally. 296 1. Traditional Cases. 297 2. Traditional Challenges. 299 a. State Power. 300 b. Takings. 301 B. Regulatory Purposes. 302 1. Nuisance Abatement. 302 2. Protection of Federal Property. 303 3. Protection of Federal Purposes. 305 C. Application. 308 1.... |
1988 |