AuthorTitleCitationSummaryYearKey Terms
W.M. von Zharen The Shrinking Sea and Expanding Sovereignty: the Fate of Fisheries 15-SUM Natural Resources & Environment 24 (Summer, 2000) Recently, turf wars have become very wet and salty. For centuries, the oceans were perceived as an infinite resource, filled with a seemingly limitless bounty of marine species. Within the last few decades, when it became obvious that many living marine species stocks were threatened and even depleted, increased attention was turned to deciding who... 2000  
Joshua I. Schwartz The Status of the Sovereign Acts and Unmistakability Doctrines in the Wake of Winstar: an Interim Report 51 Alabama Law Review 1177 (Spring, 2000) In response to an invitation to speak at the Court of Federal Claims symposium on retroactive legislation, I agreed to discuss the status of the sovereign acts and unmistakability doctrine defenses in the wake of the Supreme Court's Winstar decision. One objective of my presentation is to focus on the significant unresolved and ambiguous points... 2000  
Curtis A. Bradley The Treaty Power and American Federalism, Part Ii 99 Michigan Law Review 98 (October, 2000) In an article published in this Review two years ago, I described and critiqued what I called the nationalist view of the treaty power. Under this view, the national government has the constitutional power to enter into treaties, and thereby create binding national law by virtue of the Supremacy Clause, without regard to either subject matter or... 2000  
Curtis A. Bradley , Jack L. Goldsmith Treaties, Human Rights, and Conditional Consent 149 University of Pennsylvania Law Review 399 (December, 2000) Article II of the Constitution grants the President the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur. When the President obtains the Senate's advice and consent and ratifies a treaty, the treaty binds the United States internationally. If the treaty is... 2000  
Michael Noone Treaty Implementation: Lessons Taught by U.s./u.k. Cooperation under the Nato Status of Forces Agreement 13 New York International Law Review 39 (Winter, 2000) Military treaties of alliance are drafted by middle-aged staff officers and diplomatists, signed by elderly politicians, and commit the services of young soldiers, sailors and airmen both physically and mentally prepared for the violence of war. One can expect that, while stationed overseas as part of the Alliance, some of these young people will... 2000  
David M. Golove Treaty-making and the Nation: the Historical Foundations of the Nationalist Conception of the Treaty Power 98 Michigan Law Review 1075 (March, 2000) I. Text, Structure, and the Treaty Power. 1081 A. The Constitutional Setting. 1081 B. Clarifying the Issue. 1083 C. The Textual and Structural Argument for the Nationalist View. 1089 II. The Historical Roots of the Nationalist View. 1100 A . Original Intent and the Treaty Power. 1102 1. The Experience Under the Articles of Confederation. 1102 a.... 2000  
John W. Parry Trend - the Supreme Court and the Ada: Sovereign Immunity Musical Chairs 24 Mental & Physical Disability Law Reporter 186 (March/April, 2000) In the near future, the Supreme Court will be considering arguments in a key case involving the constitutionality of the Americans with Disabilities Act (ADA), 42 U.S.C. §12101 et seq., as applied to the states. However, it will not be one of the two cases the Court had originally decided to review this term under Titles I, 42 U.S.C. §§12111-12117,... 2000  
William P. Marshall What Is the Matter with Equality?: an Assessment of the Equal Treatment of Religion and Nonreligion in First Amendment Jurisprudence 75 Indiana Law Journal 193 (Winter, 2000) The one point on which all the participants in this Symposium agree is that current Supreme Court decisions interpreting the religion clause are heavily influenced by equality considerations. The Court, with limited exception, has indicated that, for constitutional purposes, religion should be treated equally with nonreligion. This means that... 2000  
Brett W. King Wild Political Dreaming: Historical Context, Popular Sovereignty, and Supermajority Rules 2 University of Pennsylvania Journal of Constitutional Law 609 (April, 2000) In America--a democracy founded on a belief in popular sovereignty--most people agree that, at least at some level, the fundamental principle of majority rule should prevail, and that political decisions may be made by the majority simply because it is the majority. However, most people also recognize that certain issues may legitimately require... 2000  
Jake C. Blavat Wisconsin Bell v. Public Servicecommission of Wisconsin: Problems in the Telecommunications Act in the New Age of Sovereign Immunity 2000 Wisconsin Law Review 1149 (2000) The Telecommunications Act of 1996 (the Act) was signed into law on February 8, 1996, and marked a fundamental shift in public telecommunications policy. The twin goals of Act were to deregulate the telecommunications industry and to promote competition in local phone service markets. This second purpose is not only the most important, but... 2000  
David M. LaSpaluto A 'Strikingly Anomalous,' 'Anachronistic Fiction': Off-reservation Sovereign Immunity for Indian Tribal Commercial Enterprises 36 San Diego Law Review 743 (Summer 1999) I. Introduction. 744 II. Kiowa and Its Recent Legacy. 749 A. The Case, Its Holding, and Its Effects. 749 B. The Nature of the Sovereign Immunity at Issue Here: Off-Reservation, Commercial Activity. 752 C. Trouble Areas: Places that This Will Reach. 754 D. How Far Will It Go? Dixon, Ex parte Young, and Waiver as Possible Limitations. 757 III. The... 1999 Yes
Ryan T. Koczara American Indian Law--sovereign Immunity--Indian Tribes Enjoy Sovereign Immunity from Suits on Contracts, Whether Those Contracts Involve Governmental or Commercial Activities and Whether They Were Made on or off a Reservation. Kiowa Tribe v. Manufacturing 76 University of Detroit Mercy Law Review 927 (Spring 1999) The Supreme Court has consistently held that tribal sovereign immunity is a barrier to suits against Indian tribes, without distinguishing whether the transactions upon which such suits are based occurred on or off of Indian reservations. Kiowa Tribe v. Manufacturing Technologies, Inc., presented the Supreme Court a ripe opportunity to confine... 1999 Yes
John Fredericks III America's First Nations: the Origins, History and Future of American Indian Sovereignty 7 Journal of Law & Policy 347 (1999) It is often said that Christopher Columbus discovered America. The truth is, the territory now known as the United States was occupied by large groups of indigenous people long before the Europeans reached her shores. If asked, these native people will tell you that they have occupied this land since time immemorial. Indeed, many native tribes... 1999 Yes
Amy Sender Australia's Example of T Native Title: Indigenous People's Land Rights in Australia and the United States 25 Brooklyn Journal of International Law 521 (1999) With the end of the twentieth century quickly approaching, the world's focus has shifted from a capitalist, gain-seeking mentality towards a sympathy and respect for needy and less fortunate humans. Consequently, a global emphasis has been placed on indigenous people and their rights. Remarkably, 1993 was proclaimed the International Year of the... 1999 Yes
Heath Oberloh Calvello v. Yankton Sioux Tribe: Shoring UpTribal Sovereign Immunity Against the Flood of Commercial Transactions Involving Tribally Owned Businesses 44 South Dakota Law Review 746 (1998-1999) In Calvello v. Yankton Sioux Tribe, the South Dakota Supreme Court held that the Tribe's participation in arbitration did not amount to a waiver of its sovereign immunity in a contract dispute with one of its non-tribal employees. In so deciding, the court failed to recognize the changing circumstances surrounding tribal sovereign immunity, failed... 1999 Yes
John Rainwater Criminal Jurisdiction over Tribal Land in Kansas: Dueling Sovereigns 68-FEB Journal of the Kansas Bar Association 22 (February, 1999) This article addresses criminal jurisdiction over offenses committed by or against Indians in Indian country located in Kansas. The law in this area is complex because of the overlapping jurisdiction of federal, state and tribal governments. However, in Kansas, the issue is somewhat simpler than other states. Federal law grants the state of Kansas... 1999 Yes
Alisa Cook Lauer 2000 Dispelling the Constitutional Creation Myth of Tribal Sovereignty, United States v. Weaselhead 78 Nebraska Law Review 162 (1999) Long ago There were no Stars, no moon, no sun. There was only darkness and water. A raft floated on the water, and on the raft sat a turtle. Then from the sky, a spirit came down and sat on the raft. Who are you? asked turtle. Where do you come from? I came from above, answered the spirit. Can you create some land for us? asked turtle. We... 1999 Yes
Dean B. Suagee , John P. Lowndes Due Process and Public Participation in Tribal Environmental Programs 13 Tulane Environmental Law Journal L.J. 1 (December, 1999) I. Introduction. 3 II. Why Public Participation and Due Process Matter. 5 A. Rights and Interests of Tribal Members. 6 B. Rights and Interests of Non-Indians. 6 C. Avoiding Divestiture of Sovereignty by Congress and the Courts. 7 D. Public Perceptions of Tribal Government. 9 III. Sources of Law for Due Process Before Tribal Agencies. 9 A. Indian... 1999 Yes
Beth Prinz Expanding State Sovereignty: Idaho v. Coeur D'alene Tribe of Idaho 35 Idaho Law Review 599 (1999) I. INTRODUCTION. 600 II. A BRIEF HISTORY OF THE ELEVENTH AMENDMENT. 603 A. The Beginning: The Eighteenth Century. 603 B. Interpretations of the Eleventh Amendment by the Marshall Court. 605 C. Hans v. Louisiana: What We Say Is Not Always What We Mean. 606 D. How to Sue the State Without Suing the State: Ex parte Young. 608 III. FACTS AND PROCEDURAL... 1999 Yes
David B. Jordan Federal Indian Law: Tribal Sovereign Immunity: Why Oklahoma Businesses Should Revamp Legal Relationships with Indian Tribes after Kiowa Tribe v. Manufacturing Technologies, Inc. 52 Oklahoma Law Review 489 (Fall, 1999) In May 1998, the United States Supreme Court decided Kiowa Tribe v. Manufacturing Technologies, Inc. For Oklahoma, the Supreme Court decision represented a significant shift in Oklahoma's jurisprudence regarding tribal sovereign immunity. In essence, the Supreme Court held that Indian tribes are immune from suit in state and federal court on... 1999 Yes
Andrea K. Leisy Inherent Tribal Sovereignty and the Clean Water Act: the Effect of Tribal Water Quality Standards on Non-Indian Lands Located Both Within and Outside Reservation Boundaries 29 Golden Gate University Law Review 139 (Spring, 1999) In City of Albuquerque v. Browner, the United States Court of Appeals for the Tenth Circuit held, in part, that the Environmental Protection Agency's (EPA) construction of the 1987 amendment to the Clean Water Act (CWA) was permissible because the amendment is in accord with the doctrine of Indian tribal sovereignty. Specifically, the EPA... 1999 Yes
Hon. Kerstin G. LeMaire ; & Mark D. Tallan Issues Involving Extradition and Their Impact on Tribal Sovereignty 76 University of Detroit Mercy Law Review 803 (Spring 1999) This Article will focus on the problems facing tribes when they receive a request for extradition and when they need to extradite a person from another jurisdiction to stand trial for a crime committed on a reservation. Because of tribes' unusual jurisdictional status as domestic dependent nations, they are granted limited sovereignty over... 1999 Yes
  Native American Treaties 113 Harvard Law Review 389 (November, 1999) In 1837, twelve Chippewa bands signed a treaty with the United States that ceded land in what are now Wisconsin and Minnesota in exchange for money and goods. The treaty guaranteed to the Chippewa the privilege of hunting, fishing, and gathering the wild rice on ceded lands during the pleasure of the President of the United States. Three events... 1999 Yes
  Native American Treaties 113 Harvard Law Review 389 (November, 1999) In 1837, twelve Chippewa bands signed a treaty with the United States that ceded land in what are now Wisconsin and Minnesota in exchange for money and goods. The treaty guaranteed to the Chippewa the privilege of hunting, fishing, and gathering the wild rice on ceded lands during the pleasure of the President of the United States. Three events... 1999 Yes
Larry Sager Rediscovering America: Recognizing th Native American Indian Nations 76 University of Detroit Mercy Law Review 745 (Spring 1999) Where there is law, there is injustice. -- Leo Tolstoy There exists . . . a solidarity through which each shares responsibility for every injustice and every wrong committed in his presence or of which he cannot be ignorant. If I do not do whatever I can to prevent them, I am an accomplice to them. -- Karl Jaspers This article advocates the... 1999 Yes
Jessie Huff Durham Responsible Sovereignty: How Tribes Can Use Protections Provided in P.l. 93-638 and P.l. 101-152 to Their Advantage Without Taking Advantage 35 Tulsa Law Journal 55 (Fall, 1999) Pursuant to the Acts of April 16, 1934 , November 2, 1921, and August 5, 1954, the Bureau of Indian Affairs in the Department of Interior (DOI) and the Public Health Service in the Department of Health and Human Services (DHHS) have the responsibility of providing a number of benefits and services to Indians because of their status as Indians.... 1999 Yes
Gary S. Pitchlynn Secured Transactions and Tribal Sovereign Immunity 53 Consumer Finance Law Quarterly Report 52 (Winter, 1999) The recent decision of the United States Supreme Court in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., seems to have created a substantial amount of concern among the legal and business communities that have dealings with federally recognized tribes and their business enterprises. To those who regularly practice federal/Indian law,... 1999 Yes
Martha A. Fodor Sovereign Immunity--Indian Tribes--Indian Mining Leasing Act of 1938-- Taxation--restitution 37 Duquesne Law Review 671 (Summer 1999) The Crow Tribe (Tribe) ceded a portion of its non-reservation land to the United States in 1904. Although the United States conveyed the surface rights of the strip to various non-Indians, the United States continued to hold the mineral rights underlying the strip in trust for the Tribe. The Tribe entered into a coal mining lease agreement with... 1999 Yes
Hurst Hannum Sovereignty and its Native Americans in the Twenty-first Century 23 American Indian Law Review 487 (1998/1999) Before I begin, let me make clear that I speak to you today as an international lawyer, not as an expert in the complex area of Native American law. I have been asked to address the issue of sovereignty from that international perspective, rather than to examine the concept from the more specialized viewpoint of an Indian or constitutional lawyer.... 1999 Yes
Steven W. Bugg The Business Ramifications of Tribal Sovereign Immunity: Life after Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. 53 Consumer Finance Law Quarterly Report 59 (Winter, 1999) In Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., the United States Supreme Court held that Indian tribes are protected from suit by the doctrine of tribal sovereign immunity. This decision has serious consequences for anyone engaged in any type of activity with Indian tribes. The decision leaves non-Indians with no effective remedy... 1999 Yes
Erik M. Jensen The Continuing Vitality of Tribal Sovereignty under the Constitution 60 Montana Law Review Rev. 3 (Winter, 1999) Imagination is a wonderful thing. Close your eyes, and you can walk through the looking glass into a new, and perhaps better, world. I read James A. Poore III's essay, The Constitution of the United States Applies to Indian Tribes, as such an enjoyable flight of fancy. Mr. Poore might be right that the United States would be a better place if... 1999 Yes
Erik M. Jensen The End (Of this Discussion) of Tribal Sovereignty 60 Montana Law Review 35 (Winter, 1999) This has been an interesting exchange, and I have learned a lot from it. Lest there be any confusion, let me come out strongly in favor of logic. I like logic, some of my best friends are logical, and logic is very, very important to thinking in general and to the law in particular. That said, we should recognize logic's limits in understanding the... 1999 Yes
Conrad A. Fjetland The Endangered Species Act and Indian Treaty Rights: a Fresh Look 13 Tulane Environmental Law Journal 45 (December, 1999) I. Introduction. 45 II. Avoidance of Conflicts Between the ESA and Indian Treaty Rights. 47 A. Flexibility Within the ESA. 47 B. Regulation of Treaty Rights for Conservation Purposes. 49 C. National Trust Responsibility to Maintain Treaty Rights. 51 III. Does the Endangered Species Act Abrogate Indian Treaty Rights?. 53 A. The Legislative History.... 1999 Yes
W. Michael Reisman , Co-Editor in Chief The Government of the State of Eritrea and the Government of the Republic of Yemen. Award of the Arbitral Tribunal in the First Stage of the Proceedings. (Territorial Sovereignty and Scope of the Dispute) 93 American Journal of International Law 668 (July, 1999) In an Agreement on Principles of May 21, 1996, Eritrea and Yemen agreed to renounce the use of force against each other and to settle their dispute on questions of territorial sovereignty and of delimitation of maritime boundaries peacefully. The Arbitration Agreement of October 3, 1996, implemented a two-stage process contemplated in the... 1999 Yes
Richard J. Ansson, Jr. The United States Supreme Court and American Indian Tribal Sovereignty 23 American Indian Law Review 465 (1998/1999) American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice. By David E. Wilkins. University of Texas Press. 1998. Pp. 403. In 1823, the Supreme Court addressed its first federal Indian question in Johnson v. McIntosh, and since McIntosh, the Court has decided numerous federal Indian questions. Indeed, in the past thirty years,... 1999 Yes
James T. Johnson Treaty Fishing Rights and Indian Participation in International Fisheries Management 77 Denver University Law Review 403 (1999) For centuries before the Europeans came upon North America, the rivers met the needs of the salmon and the salmon met the needs of the Indian. The tribes and the salmon had benefited from this partnership, secure in their adaptation to the environment and to each other. The Indians knew they had to protect the quality of the rivers. Under... 1999 Yes
John W. Borchert Tribal Immunity Through the Lens of the Foreign Sovereign Immunities Act: a Warrant for Codification? 13 Emory International Law Review 247 (Spring, 1999) On May 25, 1994, Officer Joseph Miller, the chief of police for the Stockbridge-Munsee Community Band of Mohican Indians (the Community), was dispatched to respond to a disturbance at tribal headquarters that involved the members of the Community's governing council. What Officer Miller found at tribal headquarters was a bitter dispute over... 1999 Yes
Eric Governo Tribal Sovereign Immunity: History, Competing Policies, and Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. 34 New England Law Review 175 (Fall, 1999) On May 28, 1998, the United States Supreme Court decided Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. The Court held that Indian tribes enjoy sovereign immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation. The case will have broad... 1999 Yes
Wilma Mankiller Tribal Sovereignty Is a Sacred Trust: an Open Letter to the Conference 23 American Indian Law Review 479 (1998/1999) I deeply regret my inability to join you for this important conference. My health is precarious and unpredictable. Yet I remain hopeful that I will ultimately regain reasonably good health again. I have looked forward to this conference for months. I have been involved in tribal rights and sovereignty issues for almost 30 years and have observed... 1999 Yes
Cynthia A. De Silva Waging the Wager War: Tribal Sovereignty, Tribal Gaming, and California's Proposition 5 and Chapter 409 30 McGeorge Law Review 1025 (Spring, 1999) I. Introduction. 1028 II. Tribal Sovereignty: Background and Principles. 1031 A. In the Beginning, There Was Light: Tribal Sovereignty in Pre- and Post-Revolutionary America. 1031 B. And Then, There Came Sunset: Tribal Sovereignty in the Marshall Court Era. 1032 1. Johnson v. M'Intosh. 1033 2. Cherokee Nation v. Georgia. 1034 3. Worcester v.... 1999 Yes
Christina Bohannan , Thomas F. Cotter When the State Steals Ideas: Is the Abrogation of State Sovereign Immunity from Federal Infringement Claims Constitutional in Light of Seminole Tribe? 67 Fordham Law Review 1435 (March, 1999) HISTORY is replete with legendary accounts of the ruler who, in an effort to preclude a master builder from ever equaling or surpassing some glorious feat commissioned by the sovereign, employs a rather crude substitute for the modern covenant not to compete. One of the more popular stories, for example, is that upon completion of St. Basil's... 1999 Yes
  2. Federalism--state Sovereign Immunity--constructive Waiver Doctrine. 113 Harvard Law Review 213 (November, 1999) To compensate individuals for harm suffered and to reduce the likelihood of non-compliance, Congress has amended the statutes underlying a range of federal programs to subject the states to private suit in federal court. In Seminole Tribe v. Florida, however, the Supreme Court held that when Congress legislates under Article I, the background... 1999  
  3. Federalism--state Sovereign Immunity--congress's Power to Enact Enforcement Legislation under Section 5 of the Fourteenth Amendment. 113 Harvard Law Review 223 (November, 1999) In his dissent in Seminole Tribe v. Florida, Justice Stevens cautioned that the decision, which prevented the use of Article I powers to abrogate state Eleventh Amendment immunity, precluded Congress from providing a federal forum for actions against the states under a broad range of federal law, including bankruptcy, environmental, copyright,... 1999  
Matthew P. Harrington A Body Corporate and Politique: the Locus of Sovereignty in the Rhode Island Charter 48-NOV Rhode Island Bar Journal B.J. 5 (November, 1999) The accumulation of all powers in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. James Madison's view of the importance of separating the powers of government has gained general acceptance among most modern political theorists. It is a... 1999  
John Gibeaut A Peace Treaty 85-JUL ABA Journal 56 (July, 1999) For Idaho's Nez Perce Indians, the return to their country of wolves and grizzly bears meant spiritual renewal. For the state's loggers, predator reintroduction might have meant a trip to the unemployment office. Call it a labor of love for the Nez Perce and a shotgun wedding for the loggers, but both have taken the same side in federal efforts to... 1999  
Honorable Marian Blank Horn A Trial Judge's Perspective--promoting Justice and Fairness While Protecting Privilege 26 Fordham Urban Law Journal 1429 (May, 1999) Let me start this evening by saying how happy I am to be here with you tonight. I feel fortunate to have been chosen to follow in the proud tradition of Maureen McNamara and to deliver this lecture in her honor. I take my place behind Ms. McNamara and the other distinguished women who have preceded me. Unlike some of my predecessors, however, I am... 1999  
By Douglas W. Kmiec Alden 1998-99 PREVIEW of United States Supreme Court Cases 358 (3/15/1999) The federal government has purported to authorize employees to sue state employers in state court for overtime wages due under federal law. The Supreme Court of Maine found this to violate a long-standing background principle of state sovereigntynamely, that no state can be sued in its own courts without its consent. Surprisingly, in over two... 1999  
Maureen P. O'Sullivan An Examination of the State and Federal Courts' Treatment of the Parent-child Privilege 39 Catholic Lawyer 201 (Summer-Fall 1999) Who would a child most likely go to if he or she got into trouble with the law? Optimally, a child would seek the guidance of his or her parents. Recently, family values has been the topic of much discussion. Society has become very concerned with striving to maintain the familial sanctum, yet the law generally does not protect confidential... 1999  
Marilyn J. Ward Ford , Robert Rude Ancsa: Sovereignty and a Just Settlement of Land Claims or an Act of Deception 15 Touro Law Review 479 (Winter, 1999) Over the last two decades, many comments have appeared in newspaper editorial pages condemning the Alaska Native Claims Settlement Act (ANCSA) as a gift of land and money to the Natives of Alaska. Contrary to these reports, ANCSA was not a gift to Natives of Alaska, it was a settlement of aboriginal land rights. Pursuant to ANCSA, Alaska Natives... 1999  
James Hunnicutt Another Reason to Reform the Federal Regulatory System: Agencies' Treating Nonlegislative Rules as Binding Law 41 Boston College Law Review 153 (December, 1999) Abstract: This Note analyzes the nonlegislative rule exception to the rulemaking requirements of the Administrative Procedure Act (APA). To lend greater accountability to federal agencies, the APA places an obligation on agencies to incorporate public input when creating new rules. Agencies, however, can avoid considering public commentary... 1999  
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