AuthorTitleCitationSummaryYear
Joani S. Harrison Constitutional Law--first Amenoment--government Action Does Not Violate Free Exercise Clause of First Amendment When it Neither Coerces Action Contrary to Religious Beliefs Nor Rrohibits Access to Practice Those Beliefs, but Merely Imposes an Incidental B 20 Saint Mary's Law Journal 427 (1989) The United States Forest Service planned to construct a six mile paved roadway through Six Rivers National Forest connecting two California cities. This area had historically been used by American Indians for religious rituals that required undisturbed natural settings. Rejecting their own study which advised that the road not be completed, the... 1989
Mark A. Newcity Constitutional Law-limitations upon Protection Offered by the Free Exercise Clause-lyng V. Northwest Indian Cemetery Protective Association, 108 S. Ct. 1319 (1988) 23 Suffolk University Law Review 126 (Spring, 1989) The free exercise clause of the first amendment prohibits the government from interfering with the free exercise of religion. In Lyng v. Northwest Indian Cemetery Protective Association, the United States Supreme Court considered whether the free exercise clause prohibited the government from constructing a road through a portion of a national... 1989
Judith V. Royster , Rory SnowArrow Fausett CONTROL OF THE RESERVATION ENVIRONMENT: TRIBAL PRIMACY, FEDERAL DELEGATION, AND THE LIMITS OF STATE INTRUSION 64 Washington Law Review 581 (July, 1989) Abstract: Inter-sovereign disputes over environmental regulation in Indian country are increasingly common. The federal government, individual states, and native nations all assert interests in controlling pollution on Indian reservations; the question of which sovereign should regulate in this area presents complex issues of federal law, native... 1989
Chriss Wetherington Criminal Jurisdiction of Tribal Courts over Nonmember Indians: the Circuit Split 1989 Duke Law Journal 1053 (September, 1989) Since at least the 19th century the plight of the American Indian has occupied a place in the consciousness and conscience of many Americans. Students of American history know of the injustices that often have been done to Indians. As a result of increased concern in the past twenty years over Indian rights, the federal government has adopted... 1989
Chriss Wetherington CRIMINAL JURISDICTION OF TRIBAL COURTS OVER NONMEMBER INDIANS: THE CIRCUIT SPLIT 1989 Duke Law Journal 1053 (September, 1989) Since at least the 19th century the plight of the American Indian has occupied a place in the consciousness and conscience of many Americans. Students of American history know of the injustices that often have been done to Indians. As a result of increased concern in the past twenty years over Indian rights, the federal government has adopted... 1989
Judith Resnik Dependent Sovereigns: Indian Tribes, States, and the Federal Courts 56 University of Chicago Law Review 671 (Spring, 1989) Introduction I. Creating the Boundaries of Jurisprudential Thought About the Federal Courts A. A Course of Study B. Premises of the Law of Federal Courts II. The Indian Tribes' Relationship to the United States III. Reasons to Give Voice A. The Interdependencies of Norms 1. Sovereignty and Membership 2. New and Old Customs 3. Codification of... 1989
Judith Resnik DEPENDENT SOVEREIGNS: INDIAN TRIBES, STATES, AND THE FEDERAL COURTS 56 University of Chicago Law Review 671 (Spring, 1989) Introduction I. Creating the Boundaries of Jurisprudential Thought About the Federal Courts A. A Course of Study B. Premises of the Law of Federal Courts II. The Indian Tribes' Relationship to the United States III. Reasons to Give Voice A. The Interdependencies of Norms 1. Sovereignty and Membership 2. New and Old Customs 3. Codification of... 1989
Suzanne S. Schmid Escheat of Indian Land as a Fifth Amendment Taking in Hodel V. Irving: a New Approach to Inheritance? 43 University of Miami Law Review 739 (January, 1989) I. INTRODUCTION 739 II. ESCHEAT OF INDIAN LAND IN HODEL V. IRVING 741 A. Historical Perspective 741 B. Escheat as a Fifth Amendment Taking 744 C. Escheat as a Due Process Violation 747 III. SPECIFIC ISSUES ARISING FROM INDIAN PROPERTY RIGHTS 749 IV. TRADITIONAL ESCHEAT AFTER IRVING 753 A. Escheat Under the Uniform Probate Code 753 B. Escheat of... 1989
Dennis W. Arrow Federal Question Doctrines and American Indian Law 14 Oklahoma City University Law Review 263 (Summer, 1989) A. The Classical Historical Period: 1789-1876 B. The Complications of Original and Removal Jurisdiction: Searching for a Unifying Approach 1. Inconsistent Requirements, Statutory Distortions, and Latent Federalism Concerns: 1877-1935 2. Gully v. First National Bank 3. The Search for Avoidance Doctrines: Modern Caselaw, 1936-1987 4.... 1989
Barbara Ann Atwood Fighting over Indian Children: the Uses and Abuses of Jurisdictional Ambiguity 36 UCLA Law Review 1051 (August, 1989) Child's Night Song Very Much, Very Much I of the Owl am Afraid, Sitting alone in the Wigwam. A boy, the son of an Indian father and non-Indian mother, is the subject of a child custody dispute between the parents. Although the family resides for several years on the reservation of the father's tribe, the mother takes the child off the reservation... 1989
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
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