AuthorTitleCitationSummaryYearKey Terms
Brad W. Morse A View from the North: Aboriginal and Treaty Issues in Canada 7 St. Thomas Law Review 671 (Summer, 1995) Let me begin by expressing my sincere appreciation to the organizers, and in particular Professor Siegfried Wiessner, for inviting me to participate in this symposium. As Professor Wiessner indicated, for the past 18 years I have been a law professor and legal counsel for a number of Indian tribes, which are called First Nations in Canada, and... 1995  
Tracy A. Diekemper Abrogating Treaty Rights under the Dion Test: Upholding Traditional Notions That Indian Treaties Are the Supreme Law of the Land 10 Journal of Environmental Law & Litigation 473 (1995) When the Native American Indians entered into treaties with the United States in the mid-1800's, many tribes expressly reserved certain rights, such as the right to fish and hunt. For example, several of the treaties entered into in 1854-55 with the tribes in the Pacific Northwest included nearly identical provisions, guaranteeing that: The... 1995 Yes
Siegfried Wiessner American Indian Treaties and Modern International Law 7 St. Thomas Law Review 567 (Summer, 1995) One of the cardinal principles of international law, if not the rock on which it stands, is the notion that nation-states are bound to keep their word. Pacta sunt servanda has been hailed as the basic norm of the law of nations, the foundation of all prescription in an essentially coarchical, consent-based and consent-driven system. The... 1995 Yes
Hiram E. Chodosh An Interpretive Theory of International Law: the Distinction Between Treaty and Customary Law 28 Vanderbilt Journal of Transnational Law 973 (11/1/1995) The author begins with an explanation of the importance of the distinction between treaty and customary law. The author then presents six alternative principles currently used to inform that distinction (dichotomy, overlap, relativity, interdependence, equivalence, and indeterminacy) and evaluates the application of these principles according to... 1995  
  Arbitration Clause Ruled a Waiver of Tribal Sovereign Immunity 50-SEP Dispute Resolution Journal 89 (July/September, 1995) A provision calling for arbitration of disputes under the contract in accordance with AAA rules was a clear expression of intent to waive tribal sovereign immunity with respect to contract, but not tort, claims, the U.S. Court of Appeals for the Eighth Circuit ruled. The dispute arose out of a $6.3 million construction contract between the Rosebud... 1995 Yes
Shelby A.D. Moore Battered Woman Syndrome: Selling the Shadow to Support the Substance 38 Howard Law Journal 297 (Spring 1995) According to Thelma Jean Banks's testimony, on the day of the murder of her live-in partner James McDonald (nicknamed Brother), Jean and Brother, both alcoholics, spent the day drinking and arguing. During an argument, Brother struck Jean, pushed her to the ground, and attempted to cut her with a grass cutter. In response, Jean, a large African... 1995  
Brad Asher Blue Clark, Lone Wolf v. Hitchcock: Treaty Rights and the Indian Law at the End of the Nineteenth Century. Lincoln: University of Nebraska Press, 1994. Xiii, 182 Pp. $37.50. 39 American Journal of Legal History 394 (July, 1995) In 1903, in the case of Lone Wolf v. Hitchcock, the Supreme Court upheld Congress's plenary power over Indian tribes and sanctioned congressionally authorized seizures of Indian lands without consent of the Indians involved and despite treaty guarantees. Blue Clark places the Lone Wolf decision in its specific historical contextthe Kiowa Indians'... 1995 Yes
Nicholas A. Robinson Colloquium: the Rio Environmental Law Treaties Iucn's Proposed Covenant on Environment & Development 13 Pace Environmental Law Review 133 (Fall 1995) Most nations today confront multiple challenges to the environmental quality which underpins and nourishes their socio-economic development. The goal of the 1992 Rio de Janeiro United Nations Conference on Environment and Development (UNCED) was to establish an action plan, Agenda 21, by which these challenges could be effectively met. UNCED... 1995  
Angela R. Hoeft Coming Full Circle: American Indian Treaty Litigation from an International Human Rights Perspective 14 Law & Inequality: A Journal of Theory and Practice 203 (December, 1995) L1-2Table of Contents Introduction. 204 I. From Sovereignty to Self-Determination. 209 A. The American Story. 209 1. Tribal Sovereignty: A Judicial Doctrine. 209 2. Tribal Self-Determination: A Federal Policy. 215 B. The International Story. 219 1. Self-Determination: From a Right of Nations to a Human Right 219 2. Self-Determination: A Right of... 1995 Yes
Steven M. Perez Confronting Biased Treatment of Trademark Parody under the Lanham Act 44 Emory Law Journal 1451 (Fall 1995) Introduction. 1452 I. The Basics of Federal Trademark Protection. 1455 A.The Appurtenant Nature of Trademarks. 1455 B.The Lanham Act: Protection and Flexibility. 1457 C.Too Much of a Good Thing?. 1460 II. Gadfly in the Ointment: Identifying the First Amendment Issues. 1464 A.The Late Arrival of Free Speech. 1465 B.The Importance of a... 1995  
S. Elizabeth Gibson Congressional Response to Hoffman and Nordic Village: Amended Section 106 and Sovereign Immunity 69 American Bankruptcy Law Journal 311 (Summer, 1995) Seeking to remedy the Bankruptcy Act's lack of express attention to its impact on governmental entities, Congress included in the Bankruptcy Reform Act of 1978 a provision dealing with the Bankruptcy Code's applicability to governmental units and the circumstances under which the sovereign immunity of governmental parties was deemed waived.... 1995  
Jennifer G. Schecter Constitutional Law -- Sovereign Immunity -- a Bistate Entity, Created by the Compact Clause and Financially Independent of its Founding States, Is Not Entitled to Eleventh Amendment Immunity from Suit in Federal Courts -- Hess v. Port Auth. Trans-hudson C 26 Seton Hall Law Review 431 (1995) One of the most basic characteristics of a federalist system of government is that the states composing the confederation are themselves independent sovereigns. In the United States, a federal form of government is guaranteed by the Tenth Amendment to the United States Constitution, which reserves to the states all powers not expressly delegated to... 1995  
Piero Tozzi Constitutional Reform on Taiwan: Fulfilling a Chinese Notion of Democratic Sovereignty? 64 Fordham Law Review 1193 (December, 1995) In an 1824 notebook entry on the Celestial Empire, the celebrated American poet and Transcendentalist Ralph Waldo Emerson remarked: The closer contemplation we condescend to bestow, the more disgustful is that booby nation. The Chinese Empire enjoys precisely a Mummy's reputation, that of having preserved to a hair for 3 or 4,000 years the ugliest... 1995  
Kimberly Younce Schooley Cultural Sovereignty, Islam, and Human Rights--toward a Communitarian Revision 25 Cumberland Law Review 651 (1994-1995) Without the past, I conceive Egypt to be utterly uninhabitable. Oh, if you were to see the people! No ideas that I had of polygamy come near the fact; and my wonder is now, not that Sarah and Rachel were so bad, but that they were not a great deal worse. Polygamy strikes at the root of everything in womanshe is not a wifeshe is not a mother;and... 1995  
Timothy D. Rudy Did We Treaty Away Ker-frisbie? 26 Saint Mary's Law Journal 791 (1995) I. Introduction . 791 II. International Practice and the American Rule on Abductions . 798 A. Customary International Law . 798 B. The Ker-Frisbie Doctrine . 802 1. Ker and Frisbie . 802 2. Toscanino and Its Progeny . 807 3. Noriega . 809 4. Verdugo-Urquidez and Alvarez-Machain . 811 III. Application of the Civil and Political Covenant to... 1995  
Kathleen M. Sullivan Dueling Sovereignties: U.s. Term Limits, Inc. v. Thornton 109 Harvard Law Review 78 (November, 1995) Between 1990 and 1994, twenty-three states barred candidates who had already served more than a maximum number of terms in Congress from running for reelection. In U.S. Term Limits, Inc. v. Thornton, the Supreme Court, by a vote of 5-4, held all such term-limits laws unconstitutional. The case arose from an amendment to the Arkansas constitution,... 1995  
Summary of Remarks by Justin R. Ward Environmental Reform Priorities for the World Trading System 35 Santa Clara Law Review 1205 (1995) The Uruguay Round agreements, which enter into force this month, establish a new World Trade Organization [hereinafter WTO] that will supplant the more informal organizational structure that has existed throughout the GATT's history. As part of the Uruguay Round package, trade ministers from around the world chartered a new WTO Committee on Trade... 1995  
Laurie Reynolds Exhaustion of Tribal Remedies: Extolling Tribal Sovereignty While Expanding Federal Jurisdiction 73 North Carolina Law Review 1089 (March, 1995) In recent years, the importance of Indian tribal courts as an independent legal forum has increased significantly. As the cases brought in tribal courts have grown in both number and complexity, however, new questions regarding the proper jurisdictional boundaries among tribal, state, and federal courts have reached the forefront in Native American... 1995 Yes
Lauralyn Brown Federal Courts--Indians: Can Congress Constitutionally Abrogate States' Eleventh Amendment Sovereign Immunity from Suits Initiated by Indian Tribes? 71 North Dakota Law Review 601 (1995) This Eleventh Circuit decision represents a consolidation of two separate district court decisions which reached opposite conclusions on the same issue. In the Florida case, Seminole Tribe of Florida v. Florida, the Tribe filed a complaint alleging that the state did not respond to the tribe's request for compact negotiations as required by the... 1995 Yes
Teresa M. Thomas Florida Supreme Court Finds Florida's Rules and Regulations Do Not Allow for the Extension of a Wastewater Treatment Facility's Construction and Testing Permit While an Operating Permit Is Pending 4 South Carolina Environmental Law Journal 94 (Spring 1995) In Legal Environmental Assistance Foundation, Inc. v. Board of County Commissioners, the Florida Supreme Court answered a certified question from the Eleventh Circuit Court of Appeals. The court held that a construction and testing permit for a wastewater treatment facility is not effective past its expiration date while an operating permit... 1995  
Daniel H. Tabak Friendship Treaties and Discriminatory Practices 28 Columbia Journal of Law and Social Problems 475 (Spring 1995) Foreign companies doing business in the United States operate under bilateral Treaties of Friendship, Commerce and Navigation signed by their home countries and the United States. These treaties contain a provision allowing foreign companies to hire personnel of their choice for specified positions. At the same time, United States citizens are... 1995  
Jeffrey A. Levick From Sovereignty to Fishing Rights: the Historical Evolution of the Law of the Territorial Sea 3 Digest of International Law 36 (1994-1995) For as long as man has inhabited the earth, he has migrated and settled near the sea. The resourceful hunter found the waters to contain an abundant food supply, while the adventurous took to the waters in efforts to seek new lands. As populations spread across the world's coastlines and imperial powers sought to explore and conquer the globe, a... 1995  
By Mary Christina Wood Fulfilling the Executive's Trust Responsibility Toward Native Nations on Environmental Issues: a Partial Critique of the Clinton Administration's Promises and Performance 25 Environmental Law 733 (Summer 1995) This Article provides a partial critique of the Clinton Administration's emerging policies to accommodate native interests in the implementation of environmental and natural resource laws. It focuses on the Administration's implementation of the Endangered Species Act in the Columbia River Basin as a case study to illustrate the need for... 1995 Yes
Samuel C. Straight Gatt and Nafta: Marrying Effective Dispute Settlement and the Sovereignty of the Fifty States 45 Duke Law Journal 216 (10/1/1995) (T)he sovereignty issue is a red herring. . . . (I)f our rights are being trampled we are going to be able to fix it. In 1776, Adam Smith admonished the world that (t)he most effectual expedient . . . for raising the value of . . . surplus pro()duce, for encouraging its increase . . . would be to allow the most perfect freedom to the trade of all... 1995  
Peter J. Carney International Forum non Conveniens: "Section 1404.5" -- a Proposal in the Interest of Sovereignty, Comity, and Individual Justice 45 American University Law Review 415 (December, 1995) C1-3Table of Contents Introduction . 417 I. Historical Development of Modern Forum Non Conveniens Doctrine . 423 A. Overview . 423 B. Early Origins 424 C. Development in Federal Court in Gulf Oil Corp. v. Gilbert . 426 D. Liberalization of Use of Forum Non Conveniens . 428 E. Refinement of Forum Non Conveniens for International Forums in Piper... 1995  
Leila P. Sayeh , Adriaen M. Morse, Jr. Islam and the Treatment of Women: an Incomplete Understanding of Gradualism 30 Texas International Law Journal 311 (Spring, 1995) C1-3Summary I. Introduction. 312 II. Understanding Islam. 313 A. Islam as Religion. 313 B. Islam as Jurisprudence: Principles of Interpretation. 316 III. Gradualism and Islam. 318 A. Gradualism as a Method of Interpretation. 318 B. Gradualism as Applied to Certain Practices. 319 IV. Evolution or Regression: Islam and Women. 321 A. The Age of the... 1995  
Grant H. Morris Judging Judgment: Assessing the Competence of Mental Patients to Refuse Treatment 32 San Diego Law Review 343 (Spring 1995) In the interface of psychiatry and law, no issue has generated more controversy than the claim by involuntarily confined mental patients of a right to refuse psychotropic medication. The debate was fueled by two early, and often-cited, articles -- one asserting that the right to refuse psychiatric treatments is necessary to inhibit a therapeutic... 1995  
P. Kenneth Kiplagat Legal Status of Integration Treaties and the Enforcement of Treaty Obligations: a Look at the Comesa Process. 23 Denver Journal of International Law and Policy 259 (Spring 1995) Integration treaties are international treaties that bring together different countries as equals. Such integration treaties necessarily impact the domestic jurisdictions of the Member States and interfere with their sovereignty. It is important, therefore, that those States be equipped to handle the interference caused by this impact through... 1995  
Krista L. Twesme Let the Games Begin: Proposed Amendment to Indian Gaming Regulation Act Limiting Native American Tribes' Sovereign Immunity 17 Hamline Journal of Public Law and Policy 187 (Fall, 1995) The notion that Native American tribes should be treated as sovereign nations within the United States was explored and developed by Chief Justice John Marshall in what has since been dubbed the Marshall Trilogy. The importance of the Marshall Trilogy has not waned over the years; to the contrary, modern cases continue to cite language from these... 1995 Yes
William J. Aceves Lost Sovereignty? The Implications of the Uruguay Round Agreements 19 Fordham International Law Journal 427 (December, 1995) On December 15, 1993, the Uruguay Round multilateral trade negotiations were concluded after seven years of extensive and often contentious negotiations. The Uruguay Round Agreements were subsequently signed on April 15, 1994 in Marrakesh, Morocco by 108 countries. The Uruguay Round Agreements were designed to fundamentally restructure and improve... 1995  
Mark L. Van Valkenburgh Massachusetts General Laws Chapter 258, S 10: Slouching Toward Sovereign Immunity 29 New England Law Review 1079 (Summer 1995) John Zukowski was sentenced to life in prison for the crime of murder in 1972. The Massachusetts Parole Board refused to grant him parole in September 1985 and again in September 1986. Immediately after the denial in 1986, however, a parole board employee incorrectly informed the Department of Corrections that Zukowski had been granted parole, and... 1995  
Judith Resnik Multiple Sovereignties: Indian Tribes, States, and the Federal Government 79 Judicature 118 (November-December 1995) Although often unrecognized, three entities within the territory that constitutes the United States--Indian tribes, states, and the federal government--have forms of sovereignty. The rich and complex relationships among these three sovereignties need to become integrated into the discussion and law of federalism. Federal law about Indian tribes... 1995 Yes
C.E. Willoughby Native American Sovereignty Takes a Back Seat to the "Pig in the Parlor:" the Redefining of Tribal Sovereignty in Traditional Property Law Terms 19 Southern Illinois University Law Journal 593 (Spring, 1995) As stated by the late scholar of Native American law, Felix S. Cohen, the fight for tribal sovereignty is of central importance to us all: Our interest in Indian self-government today is not the interest of sentimentalists or antiquarians. We have a vital concern with Indian self-government because the Indian is to America what the Jew was to the... 1995 Yes
Dana Johnson Native American Treaty Rights to Scarce Natural Resources 43 UCLA Law Review 547 (12/1/1995) Introduction. 548 I. Court Decisions Precipitating Fishing Vessel. 552 A. Access to Treaty-Secured Wildlife Resources. 552 B. State Regulation of Treaty Rights. 554 II. Fishing Vessel. 556 A. The Underlying Dispute. 557 B. Phase I -- The Boldt Decision. 558 1. Resolution of the Question Whether the Treaties Guarantee Access or Allocation. 558 2.... 1995  
Noelle M. Kahanu , Jon M. Van Dyke Native Hawaiian Entitlement to Sovereignty: an Overview 17 University of Hawaii Law Review 427 (Fall, 1995) The indwelling yearning for sovereignty among the Hawaiian people burst forth in 1993 -- 100 years after the illegal overthrow of the Kingdom of Hawaii -- with a cacophonous display of demonstrations, protests, demands, and legislative proposals. A process is now underway to reestablish an autonomous Hawaiian nation, and it appears likely that a... 1995  
Mary Christina Wood Protecting the AtTributes Native Sovereignty: a New Trust Paradigm for Federal Actions Affecting Tribal Lands and Resources 1995 Utah Law Review 109 (1995) I. Introduction. 111 II. Methodology for Establishing Standards of Fiduciary Care in the Indian Trust Context. 113 A. The Beacon of Fiduciary Obligation: The Best Interest Standard. 114 1. Applicability of Private Fiduciary Standards. 114 2. Statutory Standards as Substitutes for Fiduciary Obligations. 117 3. Constitutional Standards. 121 B. The... 1995 Yes
Shaun P. Martin Rationalizing the Irrational: the Treatment of Untenable Federal Civil Jury Verdicts 28 Creighton Law Review 683 (April, 1995) The American legal system is imperfect. The results arising therefrom are similarly imperfect. These statements cannot be seriously disputed. Although perfection is impossible, American society nevertheless highly values the quality of the results obtained by its legal structures. Accordingly, the federal system goes to great lengths to establish... 1995  
Robert S. Berger , Patricia C. Campbell , James A. Crolle III , Wendy A. Marsh , Sallie Randolph , Julia A. Solo , Hugh Stephens Recycling Industrial Sites in Erie County: Meeting the Challenge of Brownfield Redevelopment 3 Buffalo Environmental Law Journal 69 (Spring, 1995) I. The Brownfields Problem II. Barriers to Redevelopment of Brownfield Sites III. Legislative Background A. Federal Legislative Background B. New York Legislative Background IV. Lessening the Uncertainty of Brown Field Redevelopment: Liability and Cleanup Standards A. General Dimensions of Liability B. Voluntary Cleanup Programs C. Cleanup... 1995  
By Steven M. Anderson Reforming International Institutions to Improve Global Environmental Relations, Agreement, and Treaty Enforcement 18 Hastings International and Comparative Law Review 771 (Summer 1995) Animals and plants have Owners that take care of them, just as Sibo takes care of human beings. The Owners of plants and animals are supernatural beings, and they are very powerful. They don't like to see us mistreat their possessions, and in fact they punish us if we abuse their animals and plants. That's why we have to be sure to obey Sibo's... 1995  
Professor Francis Anthony Boyle Restoration of the Independent Nation State of Hawaii under International Law 7 St. Thomas Law Review 723 (Summer, 1995) I understand that the Sovereignty Commission is looking into models and examples, of where the native people of Hawaii can go in light of the state legislation that has been adopted, and also in light of the recent federal law that has just been signed into law by President Clinton. I have been asked to discuss one particular model for the future... 1995  
Kathleen Rogers , Dr. James A. Moore Revitalizing the Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere: Might Awakening a Visionary but "Sleeping" Treaty Be the Key to Preserving Biodiversity and Threatened Natural Areas in the Americas? 36 Harvard International Law Journal 465 (Spring, 1995) None of the {international environmental} institutions we studied began life as successes, though some have become so. In fact, most international environmental institutions were first considered deep disappointments by those who had worked to create them. The Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere... 1995  
Sugata Bose Safeguards for Minorities Versus Sovereignty of Nations 19-SPG Fletcher Forum of World Affairs 21 (Winter/Spring 1995) Tyranny in modern history has not been a monopoly of either arrogant majorities or brutish minorities. Whether a normative sense of political justice calls for the defense of minority rights or majority rule depends on who the tyrant is. Rights can and have been denied to collectivities whose demographic status has ranged from microscopic minority... 1995 Yes
Gloria Valencia-Weber Shrinking Indian Country: a State Offensive to Divest Tribal Sovereignty 27 Connecticut Law Review 1281 (Summer 1995) Contemporary practices of some state governments attempt to shrink Indian country--the land over which American Indian tribes govern--as a way of divesting or voiding tribal sovereignty. States aggressively ask the courts to legitimate their state regulation, coupled with taxation, in an effort to change the size and status of Indian lands so that... 1995 Yes
Janis Searles South Dakota v. Bourland: Another Supreme Court Move Away from Recognition of Tribal Sovereignty 25 Environmental Law 209 (Winter, 1995) I. INTRODUCTION II. CONGRESSIONAL ABROGATION OF TREATY RIGHTS A. Shifting Standards of Abrogation B. The Dion Standard III. JUDICIAL EROSION OF TRIBAL SOVEREIGNTY: THE MONTANA AND BRENDALE DECISIONS A. Montana v. United States B. Brendale v. Confederated Tribes & Bands of the Yakima Nation IV. SOUTH DAKOTA V. BOURLAND A. The Cheyenne River... 1995 Yes
Randall S. Abate , Carolyn H. Cogswell Sovereign Immunity and Citizen Enforcement of Federal Environmental Laws: a Proposal for a New Synthesis 15 Virginia Environmental Law Journal L.J. 1 (Fall 1995) The common law doctrine of sovereign immunity is frequently used by courts to deny a right of action or remedy against the sovereign United States, unless such immunity is specifically waived. Judicial interpretation of waiver has fluctuated throughout the doctrine's history. The current trend favors a narrow interpretation, thereby precluding... 1995  
Rodney K. Smith Sovereignty and the Sacred: the Establishment Clause in Indian Country 56 Montana Law Review 295 (Winter 1995) Shortly after arriving in Montana, to serve as Dean of the School of Law, I had the opportunity to visit six of the seven tribal colleges in the state. As I visited each of those colleges, I was struck by the pervasive role of religion in sustaining the culture that makes those colleges special, places with the capacity to significantly increase... 1995 Yes
G. Peter Jemison Sovereignty and Treaty Rights-we Remember 7 St. Thomas Law Review 631 (Summer, 1995) Nyaweh Skannoh gah gwe goh! I want to talk about our original treaties because we not only made treaties with the United States, but we also made treaties with other foreign countries, and perhaps the first one that we made was with the Dutch. We used a wampum belt. That is, a two row wampum belt with two parallel lines on a field of white. We used... 1995  
G. Peter Jemison Sovereignty and Treaty Rights-we Remember 7 St. Thomas Law Review 631 (Summer, 1995) Nyaweh Skannoh gah gwe goh! I want to talk about our original treaties because we not only made treaties with the United States, but we also made treaties with other foreign countries, and perhaps the first one that we made was with the Dutch. We used a wampum belt. That is, a two row wampum belt with two parallel lines on a field of white. We used... 1995  
Mark J. Wolff Spirituality, Culture and Tradition: an Introduction to the Role of Tribal Courts and Councils in Native American Heritage and Sovereignty 7 St. Thomas Law Review 761 (Summer, 1995) It is appropriate that we now turn our attention to tribal court systems, not because the Symposium is being hosted by St. Thomas University School of Law nor because we are physically in this law school's moot court room, but because the law and its administration embodies and reflects a civilization's spirituality, tradition and culture.... 1995 Yes
Mary-Rose Papandrea Standing to Allege Violations of the Doctrine of Specialty: an Examination of the Relationship Between the Individual and the Sovereign 62 University of Chicago Law Review 1187 (Summer 1995) In extradition treaties, sovereign powers promise to surrender individuals who have been accused or convicted of an offense outside their territory to the country seeking to prosecute the individual for that offense. Because entering into an extradition treaty involves the sacrifice of some sovereign rights, these treaties are always reciprocal: a... 1995  
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