AuthorTitleCitationSummaryYearKey Terms
John Copeland Nagle Waiving Sovereign Immunity in an Age of Clear Statement Rules 1995 Wisconsin Law Review 771 (1995) The Supreme Court has been creating clear statement rules faster than commentators can keep track of them. Clear statement rules now govern statutory interpretation questions involving congressional regulation of core state functions, the abrogation of state Eleventh Amendment immunity, the extraterritorial effect of a statute, congressional... 1995  
Judith V. Royster A Primer on Indian Water Rights: More Questions than Answers 30 Tulsa Law Journal 61 (Fall, 1994) I. Introduction . 62 II. Origins of the Reserved Rights Doctrine . 63 III. Scope and Extent of Reserved Rights . 66 A. Waters Subject to the Right . 67 B. Priority Date . 70 C. Purposes of the Reservation . 71 D. Quantification of the Right . 74 E. Use of Reserved Water Rights . 78 F. Water Transfers and Water Marketing . 82 G. Water Quality . 85... 1994 Yes
Vicki J. Limas Application of Federal Labor and Employment Native American Tribes: Respecting Sovereignty and Achieving Consistency 26 Arizona State Law Journal 681 (Fall, 1994) As Native American tribal economies continue to develop and grow, tribal governments and businesses are providing additional revenues for tribal operations and significant sources of employment for tribal members and others. With increased employment opportunities, however, come increasing numbers of employment disputes. The federal government... 1994 Yes
William V. Vetter Doing Business with Indians and the Three "S"es: Secretarial Approval, Sovereign Immunity, and Subject Matter Jurisdiction 36 Arizona Law Review 169 (Spring, 1994) Indian tribes and individuals are no longer economically isolated. They are increasingly involved in diverse economic activities, including operating on-and off-reservation enterprises, exporting reservation-produced products and services, and purchasing goods and services from off-reservation suppliers. The number and value of economic contracts... 1994 Yes
Ray Halbritter , Steven Paul Mcsloy , (Oneida Indian Nation of New York, Wolf Clan) Empowerment or Dependence? The Practical Value and Native American Sovereignty 26 New York University Journal of International Law & Politics 531 (Spring, 1994) She:go. That is an ancient word of address and how our Oneida people still greet one another. My purpose in writing this article is to relate some of the history of my people, the Oneida Indian Nation, one of the Six Nations of the Iroquois Confederacy (more properly referred to as the Haudenosaunee), and to describe the context in which we have... 1994 Yes
Mary Christina Wood Indian Land and the Native Sovereignty: the Trust Doctrine Revisited 1994 Utah Law Review 1471 (1994) Introduction. 1472 I. The Gathering Peril: Development Impacting Indian Country and the Federal Government's Role. 1476 A. The Modern Configuration of Indian Land. 1476 B. Indian Land Development in the Self- Determination Era. 1480 C. Actions on Lands Adjacent to Indian Country. 1489 II. The Indian Trust Doctrine: Its Origin and Parameters. 1495... 1994 Yes
A. Cassidy Sehgal Indian Tribal Sovereignty and Waste Disposal Regulation 5 Fordham Environmental Law Journal 431 (Spring, 1994) Commercial waste management companies and the nuclear industry have recently started negotiating with Indian tribes for the use of their lands to store hazardous and nuclear waste. It is their hope that such a measure will provide a solution to the 900 million tons of municipal garbage, toxic waste and sewage sludge generated annually, in the face... 1994 Yes
William J. Murphy Jurisdiction -- Sovereign Immunity -- B Native American Nation Granted Sovereign Immunity from Suit Arising from its Private Off-reservation Transaction, in re Greene, 980 F.2d 590 (9th Cir. 1992), Cert. Denied, 114 S. Ct. 681 (1994). 17 Suffolk Transnational Law Review 599 (Spring 1994) Since the early nineteenth century, the United States Supreme Court has recognized Native American tribes as sovereign nations by virtue of their aboriginal existence in what is now the United States. Consequently, Native American nations have been granted the same immunity from suit traditionally extended to foreign sovereign powers. In In Re... 1994 Yes
Jon D. Erickson, Duane Chapman, Ronald E. Johnny Monitored Retrievable Storage of Spent Nuclear Fuel in Indian Country: Liability, Sovereignty, and Socioeconomics 19 American Indian Law Review 73 (1994) Federal nuclear spent fuel policy has evolved into soliciting Indian tribal and state units of government to volunteer for hosting temporary waste storage, Monitored Retrievable Storage (MRS). Through the United States Office of the Nuclear Waste Negotiator (NWN), feasibility study grants have been awarded almost exclusively to Native American... 1994 Yes
Catherine M. Ovsak Reaffirming the Guarantee: Indian Treaty Rights to Hunt and Fish Off-reservation in Minnesota 20 William Mitchell Law Review 1177 (1994) I. Introduction. 802 II. Background on Indian Treaties. 803 A. Origins. 803 B. Statutory Canons. 805 III. Regulation of Treaty Rights. 808 A. Federal Regulation. 808 1. Regulations Limiting Treaty Rights. 808 2. Regulations Protecting Treaty Rights. 809 B. Tribal Regulation. 811 1. Origin and Extent of Regulation. 811 2. Recognition of Tribal... 1994 Yes
Rebecca Tsosie Separate Sovereigns, Civil Rights, and the Sacred Text: the Legacy of Justice Thurgood Marshall's Indian Law Jurisprudence 26 Arizona State Law Journal 495 (Summer, 1994) When Justice Thurgood Marshall stepped down from the Supreme Court, many people mourned the loss of his vision of equality, civil rights, and justice. Marshall's vision lives on in his opinions, however, providing a legacy for future courts grappling with difficult issues such as sovereignty, civil rights, federalism, and individual liberty.... 1994 Yes
Chad W. Swenson South Dakota v. Bourland: Drowning Cheyenne River Sioux Tribal Sovereignty in a Flood of Broken Promises 39 South Dakota Law Review 181 (1994) In South Dakota v. Bourland, the United States Supreme Court precluded the Cheyenne River Sioux Tribe from regulating non-Indian hunting and fishing on reservation lands taken pursuant to the Flood Control Act of 1944 and the Cheyenne River Act of 1954. In examining whether Congress intended to abrogate the Tribe's 1868 Fort Laramie Treaty right to... 1994 Yes
James A. Casey Sovereignty by Sufferance: the Illusion of Indian Tribal Sovereignty 79 Cornell Law Review 404 (January, 1994) In his first inaugural address, President Andrew Jackson stated that the Cherokees would receive as much humane and considerate attention to their rights' as was consistent with the habits of our Government and the feelings of our people. Echoing this statement, the Supreme Court noted in In re Mayfield that Congress would allow the... 1994 Yes
Vincent C. Milani The Right to Counsel Native American Tribal Courts: Tribal Sovereignty and Congressional Control 31 American Criminal Law Review 1279 (Summer, 1994) I. Introduction. 1279 II. Background. 1280 A. History of Tribal Courts. 1280 B. Modern Tribal Courts. 1282 1. Nature of Tribal Courts. 1282 2. Tribal Court Criminal Jurisdiction. 1283 3. The Right to Counsel in Tribal Courts. 1284 C. Role of Federal Courts in Tribal Judicial Systems. 1285 1. Federal Court Original Jurisdiction. 1285 2.... 1994 Yes
Stephen M. Feldman The Supreme Court's New Sovereign Immunity Doctrine and the Mccarran Amendment: Toward Ending State Adjudication of Indian Water Rights 18 Harvard Environmental Law Review 433 (1994) Mark Twain once said that water, taken in moderation, cannot hurt anybody. Taking water from the land, however, even in moderation, may prove terribly damaging to the land itself and those who subsist on it. Water is the lifeblood of the land and consequently the lifeblood of civilization. This truth is nowhere more self-evident than in the arid... 1994 Yes
Michael M. Pacheco Toward a Truer Sense of Sovereignty: Fiduciary Duty in Indian Corporations 39 South Dakota Law Review 49 (1994) Federal Indian law ought to be praised for inspiring the Indians' faith in the law but cursed for betraying the believer. The number of Indian corporations is on the rise, and more and more American Indians are becoming part of the corporate world. Today's Indians fight their battles in corporate boardrooms and law offices as tribes endeavor to... 1994 Yes
Ellen P. Aprill Tribal Bonds: Indian Sovereignty and the Tax Legislative Process 46 Administrative Law Review 333 (Summer, 1994) I. Background: IRS Rulings II. Congressional Action 1975 to 1982 A. Legislative Proposals B. Bonding Authority Under the Tribal Tax Act C. Statutory Ambiguity and Its Uses III. IRS Response to the Tribal Tax Act A. Development of the Regulations B. Administrative Discretion, Legislative History, and Regulatory Bias IV. Consequences of the... 1994 Yes
Richard Monette When Tribes Sue States: How "Federal Indian Law" Offers an Opportunity to Clarify Sovereign Immunity Jurisprudence 14 QLR 401 (Fall, 1994) Sovereign immunity goes to the very heart of [the] federal system and affect [[[s] the allocation of power between the United States and the several States. From the early days of this Nation, when Chisholm v. Georgia was decided against the State by the Federalist-minded Supreme Court and was then summarily reversed by the Anti-Federalist-minded... 1994 Yes
Youlian Simidjiyski A Comparative Study of the Bulgarian Law on Foreign Investment and the Foreign Investment Laws of Hungary, Poland, and the Czech Republic Through the Prism of the World Bank Guidelines for Treatment of Foreign Investment Bulgarian Law 9 Florida Journal of International Law 277 (Summer 1994) I. Introduction. 278 II. Admission of Foreign Investments. 280 A. Bulgaria. 281 B. The Czech Republic. 283 C. Hungary. 283 D. Poland. 284 II. Conclusion of Chapter II. 286 III. Treatment of Foreign Investments. 288 A. Bulgaria. 289 B. The Czech Republic. 292 C. Hungary. 294 D. Poland. 296 E. Conclusion of Chapter III. 296 IV. Expropriation of... 1994  
Todd Stewart Schenk A Proposal to Improve the Treatment of Women in Asylum Law: Adding a "Gender" Category to the International Definition of "Refugee" 2 Indiana Journal of Global Legal Studies 301 (Fall, 1994) Asylum is provided for in the modern law of civilized nations to protect victims of selected human rights violations occurring worldwide. The typical human rights victim is portrayed in both legal and human rights literature as a male dissident, tortured or imprisoned by the State. The statistics, however, tend to dispel the notion that asylees are... 1994  
Kristin L. Oelstrom A Treaty for the Future: the Dispute Settlement Mechanisms of the Nafta 25 Law and Policy in International Business 783 (Winter, 1994) Representatives of the United States, Mexico, and Canada officially announced the completion of negotiations on a North American free trade agreement (NAFTA) on August 12, 1992. Because Canada and Mexico are two of the United States' three most important trading partners, this agreement will have significant ramifications in areas such as market... 1994  
Julie A. Roin Adding Insult to Injury: the "Enhancement" of S 163(j) and the Tax Treatment of Foreign Investors in the United States 49 Tax Law Review 269 (Winter, 1994) As the level of foreign investment in the United States has grown, so too has concern at both the legislative and more popular levels over whether such investment bears its fair tax share. Ballooning federal deficits, the publication of a series of studies purportedly showing foreign-owned enterprises paying less in federal taxes than comparable,... 1994  
Charles J. Reid, Jr. Am I, by Law, the Lord of the World?: How the Juristic Response to Frederick Barbarossa's Curiosity Helped Shape Western Constitutionalism 92 Michigan Law Review 1646 (May, 1994) Kenneth Pennington's new book can fairly be called a tour de force. Pennington begins his book with a subtle and thorough examination of some of the basic elements of the constitutional order that first emerged in Western law in the twelfth and thirteenth centuries -- including theories of sovereignty, power, rights, and due process -- and goes on... 1994  
Lynn Murtha, Suzanne L. Smith An Ounce of Prevention . . . : Restriction Versus Proaction in American Gun Violence Policies 10 Saint John's Journal of Legal Commentary 205 (Fall, 1994) Gun violence in America has risen to startling heights. While the societal and economic costs of gun violence continue to rise, our political system remains impotent in its efforts to curb this national epidemic. Throughout history, the most popular methods employed in attempting to control gun violence have been restrictive in nature. Restrictive... 1994  
Gary L. Francione Animals, Property and Legal Welfarism: "Unnecessary" Suffering and the "Humane" Treatment of Animals 46 Rutgers Law Review 721 (Winter, 1994) There is increasing social concern about our use of nonhumans for experiments, food, clothing, and entertainment. This concern about animals reflects both our own moral development as a civilization, and our recognition that the differences between humans and animals are, for the most part, differences of degree and not of kind. For example, animal... 1994  
Pamela McCormack Appellate Division, First Department, Recognizes an Exception to New York City's Sovereign Immunity 68 Saint John's Law Review 779 (Summer 1994) A municipality, generally, has no affirmative duty to provide police protection absent a special relationship between it and the claimant. Thus, the New York City Transit Authority (TA), absent such special relationship, generally may not be held liable for its failure to provide adequate police protection. This immunity . . . rests upon the... 1994  
Keith Highet, George Kahale III, Barry Phillips, Barrister-at-Law, Gray's Inn, London British Commonwealth Case Note 88 American Journal of International Law 775 (October, 1994) During the nineteenth century the Privy Council, the supreme appellate tribunal for the British Empire, had the duty of determining appeals from some 150 colonial, Indian, Admiralty, Vice-Admiralty, prize, ecclesiastical and consular jurisdictions. Clearly, when compared with its authority during the last century, the jurisdiction of the Judicial... 1994  
Aristide R. Zolberg Changing Sovereignty Games and International Migration 2 Indiana Journal of Global Legal Studies 153 (Fall, 1994) In this article, Professor Zolberg argues that today's immigration issues should be analyzed within their historical bases. He follows the formation of the modern State, with particular focus on the legal and political meaning of sovereignty as understood in pre-colonial times down to the World War II period. He next identifies several late... 1994  
Jeffrey A. Hart Comments on "Changing Sovereignty Games and International Migration" 2 Indiana Journal of Global Legal Studies 171 (Fall, 1994) Globalization has at least five separate and distinguishable meanings, which I will label as follows: (1) the existence of a global infrastructure; (2) global harmonization or convergence of some important characteristic feature; (3) borderlessness; (4) global diffusion of some initially localized phenomenon; and (5) geographical dispersion of core... 1994  
Eric D. Suben Contrasting Judicial Approaches to Seamen's Claims under the Foreign Sovereign Immunities Act 18 Tulane Maritime Law Journal 231 (Summer, 1994) Sovereign immunity is a familiar doctrine that allows sovereign or governmental entities to avoid suit, except to the extent those entities consent to be sued. Among the entities entitled to claim such immunity are nations, states, and counties. Maritime lawyers are most familiar with the concept as expressed by the Suits in Admiralty Act, which... 1994  
John J. Yered Criminal Law -- Extradition -- Defendant Forcibly Abducted at Request of United States Government Agents Subject to Jurisdiction of United States Courts Despite Extradition Treaty, United States v. Alvarez-machain, 112 S. Ct. 2188 (1992). 17 Suffolk Transnational Law Review 218 (Winter 1994) In the Extradition Treaty (Treaty) between the United States and Mexico, both parties promised to cooperate in the fight against crime and to mutually assist each other in matters of extradition. In United States v. Alvarez-Machain, the Supreme Court of the United States considered whether a United States court had jurisdiction over a Mexican... 1994  
Kofi Darko Asante Election Monitoring's Impact on the Law: Can it Be Reconciled with Sovereignty and Nonintervention? 26 New York University Journal of International Law & Politics 235 (Winter, 1994) Sovereignty: The supreme, absolute, and uncontrollable power by which any independent state is governed; supreme political authority; the supreme will; paramount control of the constitution and frame of government and its administration; the self-sufficient source of political power, from which all specific political powers are derived; the... 1994  
Jorge Martin English Polygamy Law and the Danish Registered Partnership Act: a Case for the Consistent Treatment of Foreign Polygamous Marriages and Danish Same-sex Marriages in England 27 Cornell International Law Journal 419 (Spring 1994) On October 1, 1989, Denmark became the first country in modern Western civilization legally to recognize same-sex marriages, officially calling these unions registered partnerships. This bold piece of Danish legislation, the Registered Partnership Act (Partnership Act), represents a milestone in the progression of human rights. The Partnership... 1994  
Jerry R. Parkinson Federal Court Treatment of Corporal Punishment in Public Schools: Jurisprudence That Is Literally Shocking to the Conscience 39 South Dakota Law Review 276 (1994) As a result of the spanking, Shawn Hale suffered what could be reasonably considered as the expected, minor bruises to his buttocks; and he also suffered a minor, small bruise to the smallest finger on his right hand, which had apparently gotten in the way of the paddle as it was being applied to his buttocks. Shawn Hale's case involved a... 1994  
Holly Everett Federal Sovereign Immunity and Cercla: When Is the United States Liable for Costs? 9 Journal of Natural Resources & Environmental Law 479 (1993-1994) In 1980 Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act to respond to the problems associated with abandoned and inactive hazardous waste disposal sites. Provisions for financing the cleanup of these sites were also included in this statute. Essentially, CERCLA places the financial responsibility for... 1994  
Paul J. Donahue Federal Tax Treatment of Health Care Expenditures: Is it Part of the Health Care Problem? 46 Washington University Journal of Urban and Contemporary Law 141 (Summer, 1994) Seeking solutions to social problems is always difficult; some problems are probably impossible to solve within the social context in which they are embedded. Health care reform provides a ready example. Access to health care has been an acknowledged problem probably as long as health care has been provided at a price by members of a learned... 1994  
Alex Dehgan Federalism, Regionalism, and Sovereignty in Russia 5 Seton Hall Constitutional Law Journal L.J. 1 (Fall, 1994) So that in the first place, I put for a generall inclination of all mankind, a perpetuall and restlesse desire of Power after power, that ceaseth onely in Death. And the cause of this, is not always that a man hopes for a more intensive delight, than he has already attained to; or that he cannot be content with a moderate power: but because he... 1994  
Valentina O. Okaru Financing Publicly Owned Treatment Works and Instituting Enforcement Measures Against Non-compliant Works under the Clean Water Act 2 Buffalo Environmental Law Journal 213 (Fall, 1994) Evidence of Poor Performance; Reasons For and Nature of Municipal Non-compliance With the Clean Water Act (CWA): Reports illustrate that of the rivers and streams in the United States that do not meet their state water quality standards, 17 percent are failing because of pollution from publicly owned treatment works (POTWs or publicly owned waste... 1994  
John Linarelli Immigration Politics and Sovereignty: National Responses to "Bad" Aliens 88 American Society of International Law Proceedings 439 (April 6-9, 1994) The panel was convened at 2:30 p.m., Friday, April 8, by its Chair, Karen Engle, who introduced the panelists: Linda Bosniak, Rutgers Law School, Camden; Jean Manas, European Law Research Center, Harvard Law School; Harold Hongju Koh, Yale Law School; and Stacy Brustin, Columbus School of Law, The Catholic University of America. In 1987, Professor... 1994  
Moujan M. Walkow Informed Consent--legal Competency Not Determinative of Person's Ability to Consent to Medical Treatment--miller v. Rhode Island Hospital, 625 A.2d 778 (R.i. 1993) 28 Suffolk University Law Review 271 (Spring 1994) Under the common-law right of informed consent, every person has the right to refuse medical treatment. In order to exercise this right, a patient must possess the mental capacity to make informed decisions regarding treatment. In Miller v. Rhode Island Hospital, the Supreme Court of Rhode Island considered whether a judicial determination that a... 1994  
Edwin R. Alley International Litigation and Arbitration 28 International Lawyer 177 (Spring, 1994) Lawyers and law students unacquainted with international law may be tempted to think that it is as dry as dust, but the compelling episodes of international litigation set forth in the books reviewed below suggest that this view is misguided. During an interlude in the background work for this review, I had the diverting experience of reading John... 1994  
Carlos R. Soltero Is Puerto Rico a "Sovereign" for Purposes of the Dual Sovereignty Exception to the Double Jeopardy Clause? 28 Revista Juridica Universidad Interamericana de Puerto Rico 183 (April, 1994) For better or for worse, the thorny issue of the anomalous constitutional status of Puerto Rico faces the Supreme Court once again in an awkward and unexpected legal posture. The Eleventh Circuit ruled earlier this year that the dual sovereignty exception to the Double Jeopardy Clause does not apply to cases where one of the prosecutions is by the... 1994  
Carlos R. Soltero Is Puerto Rico a "Sovereign" for Purposes of the Dual Sovereignty Exception to the Double Jeopardy Clause? 28 Revista Juridica Universidad Interamericana de Puerto Rico 183 (April, 1994) For better or for worse, the thorny issue of the anomalous constitutional status of Puerto Rico faces the Supreme Court once again in an awkward and unexpected legal posture. The Eleventh Circuit ruled earlier this year that the dual sovereignty exception to the Double Jeopardy Clause does not apply to cases where one of the prosecutions is by the... 1994  
David Sachs Is the 19th Century Doctrine of Treaty Override Good Law for Modern Day Tax Treaties? 47 Tax Lawyer 867 (Summer, 1994) There has been substantial controversy in recent years over various congressional tax enactments that have expressly overridden tax-treaty obligations of the United States. This controversy has focused almost exclusively on questions of whether tax treaties were materially violated and, if so, whether this was sound or wise policy. The premise that... 1994  
Leigh Ann Kennedy Jurisdiction in Violation of an Extradition Treaty: United States v. Alvarez-machain 27 Creighton Law Review 1105 (1993-1994) On June 15, 1992, the United States Supreme Court ruled that a Mexican National forcibly removed and brought to the United States could be tried before an American Court. Humberto Alvarez-Machain had been kidnapped in Guadalajara, Mexico, and transported to the United States. The abduction was conducted by operatives hired by the United States... 1994  
Cynthia L. Estlund Labor, Property, and Sovereignty after Lechmere 46 Stanford Law Review 305 (January, 1994) In 1992, the Supreme Court held in Lechmere, Inc. v. NLRB that an employer may lawfully prohibit union organizers from soliciting on private property unless the organizers faced unique obstacles to communication by other means. Cynthia L. Estlund argues that Lechmere represents an overbroad conception of property owners' right to exclude, by... 1994  
Richard A. Morgan Military Use of Commercial Communication Satellites: a New Look at the Outer Space Treaty and 'Peaceful Purposes' 60 Journal of Air Law and Commerce 237 (September-October 1994) C1-3TABLE OF CONTENTS INTRODUCTION. 239 E9PART I. MILITARY SATELLITE USAGE. 243 A. Military Satellite Usage by Illustrative Countries. 244 1. Defense Policies. 244 2. Country-by-Country Usage. 246 3. United States Military Satellites. 248 4. Former Soviet Union's Military Satellites. 251 B. Commercial Communications Satellite Services. 252 1.... 1994  
Richard B. Bilder, Ralph G. Steinhardt, National Law Center, The George Washington University Modern Law of Self-determination. Edited by Christian Tomuschat. Dordrecht, Boston, London: Martinus Nijhoff Publishers, 1993. Pp. X, 347. Dfl. 185.00; $104.50; £0.75. 88 American Journal of International Law 831 (October, 1994) We live in an era in which the discourse about self-determination has become almost hopelessly ritualized. One dominant orthodoxy portrays the self-determination of peoples as jus cogensone of the preferred norms of general international law from which no derogation is permitted. Grounded in the UN Charter and reaffirmed in a range of declarations... 1994  
Marc G. Laverdiere Natural Resource Damages: Temporary Sanctuary for Federal Sovereign Immunity 13 Virginia Environmental Law Journal 589 (Summer 1994) Federal facilities, including those run by the Department of Defense (DOD), have long been responsible for discharging hazardous substances and oil into the environment. Many of these substances are the same as those found at major industrial chemical facilities. These discharges have led to accusations that DOD facilities have been carrying on a... 1994  
Robert Corn-Revere New Technology and the First Amendment: Breaking the Cycle of Repression 17 Hastings Communications and Entertainment Law Journal (COMM/ENT) 247 (Fall, 1994) I. First Amendment Identity Crisis on the Information Superhighway . 249 A. What is Wrong With This Picture? . 249 B. Traditionalism, Incrementalism, and Revisionism . 253 C. Cable Television at the Crossroads . 254 II. The Real Issue: Applying the First Amendment to New Technologies . 259 A. Transition to the Multimedia Age . 260 B. Historical... 1994  
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