AuthorTitleCitationSummaryYearKey Terms
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
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
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
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
Winston P. Nagan Strengthening Humanitarian Law: Sovereignty, International Criminal Law and the Ad Hoc Tribunal for the Former Yugoslavia 6 Duke Journal of Comparative & International Law 127 (Fall, 1995) The importance of strengthening humanitarian law, and, for that matter, human rights law, is evident in light of the ubiquity of recourse to violence to resolve international as well as internal conflicts. This use of violence provokes the most grave deviations from even the most minimal level of moral sensibility. Two conflicts that have shocked... 1995 Yes
John S. Harbison The Broken Promise L Native American Tribal Sovereignty over Reservation Resources 14 Stanford Environmental Law Journal 347 (May, 1995) I. Territory and Collective Rights . 347 II. The Bourland-Brendale-Montana Trilogy . 351 III. Collective Rights in the Liberal Polity . 367 1995 Yes
John S. Harbison The Downstream People: Treating Indian Tribes as States under the Clean Water Act 71 North Dakota Law Review 473 (1995) In the early summer of 1763, a party of French adventurers led by Father Jacques Marquette, a Jesuit priest, and Louis Joliet, a cours de bois, came upon a group of villages at the confluence of the Arkansas and Mississippi Rivers. The villagers were Siouan speakers who called themselves the Quapaw, or Downstream People. Exactly when the Quapaw... 1995 Yes
Darby L. Hoggatt The Wyoming Tribal Full Faith and Credit Act: Enforcing Tribal Judgments and Protecting Tribal Sovereignty 30 Land and Water Law Review 531 (1995) In 1994 the Fifty-Second Wyoming Legislature enacted the Wyoming Tribal Full Faith and Credit Act (WTFF&CA) requiring Wyoming state courts to recognize judicial records, orders, and judgments of the Eastern Shoshone and Northern Arapaho Tribes as long as tribal courts recognize Wyoming's judicial records, orders, and judgments. Prior to passage,... 1995 Yes
Richard Monette, James M. Grijalva, P.S. Deloria, Judith V. Royster, Rebecca Tsosie Treating Tribes as States under the Clean Water Act: the Good and the Bad 71 North Dakota Law Review 497 (1995) MR. MONETTE: Good morning. Nice to see you all again. We have a slight change in the panel, as you can see. Let me just first mention that John Harbison has, I understand, taken ill and probably won't be with us today. So he could probably use some of our good thoughts. And Sam Deloria will sit in his place to help respond. Our topic is, as you can... 1995 Yes
Frank Pommersheim Tribal Courts: Providers of Justice and Protectors of Sovereignty 79 Judicature 110 (November-December 1995) Tribal courts are now the premier institutions that struggle to analyze and identify the extent of tribal jurisdiction and sovereignty. Tribal courts are the frontline institutions that most often confront issues of American Indian self-determination and sovereignty. At the same time they are charged with providing reliable and equitable... 1995 Yes
Kirke Kickingbird What's past Is Prologue : the Status and Contemporary Relevance of American Indian Treaties 7 St. Thomas Law Review 603 (Summer, 1995) If there is any subject related to American Indians of which the average American has any knowledge, it is Indian treaties. Those citizens who possess this passing knowledge of Indian history and American Indian law often dismiss Indian treaty rights because they believe in the myth of the broken treaty. This myth says that conduct on the part of... 1995 Yes
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
Bruce A. Wagman Advancing Tribal Sovereign Immunity as a Pathway to Power 27 University of San Francisco Law Review 419 (Winter, 1993) AMERICAN INDIAN tribes existed as individual, self-contained nations before the first Europeans set foot on the American continent. Initial treaty making by British and Spanish colonizers officially recognized the undisputed sovereignty of Indian nations. At the same time, the Europeans set a precedent of domination through cession of Indian lands... 1993 Yes
Steven Paul McSloy Bac Native American Sovereignty in the 21st Century 20 New York University Review of Law and Social Change 217 (1993) Introduction I. From Then to Here A. International Law B. Land C. Federalism D. The Frontier E. Plenary Power F. The Road II. The Empire Has No Clothes A. The Commerce Clause B. The Treaty Power C. The Trust Relationship D. Implicit Divestiture E. There Is No There There F. What Is to Be Done? III. International Law and Indigenous Peoples A.... 1993 Yes
James J. Belliveau Casino Gambling under the Indian Gaming Regulatory Act: Narragansett Tribal Sovereignty Versus Rhode Island Gambling Laws 27 Suffolk University Law Review 389 (1993) The question of how best to regulate gaming on Indian lands raises important issues regarding State law enforcement authority, the need for proper regulation of gaming activities and the strong interests of Indian tribes in self-government and economic development. As with most matters affecting the legal relations between the States and Indian... 1993 Yes
Robert Berry Civil Liberties Constraints on Tribal Sovereignty after the Indian Civil Rights Act of 1968 1 Journal of Law & Policy Pol'y 1 (1993) The Indian Civil Rights Act of 1968 provided a legislative answer to the question of whether, and to what extent, fundamental civil liberties recognized in constitutional law should constrain federally recognized Indian Tribes in the exercise of their sovereign powers. In enacting this law, Congress weighed its desire to protect individuals from... 1993 Yes
Patrick Macklem DisTributing Sovereignty: Indian Nations and Equality of Peoples 45 Stanford Law Review 1311 (May, 1993) I. Introduction. 1312 II. Indian Government in North America. 1316 A. United States. 1317 B. Canada. 1320 C. Similarities. 1323 D. Racial or Political?. 1324 III. Indian Government and Prior Occupancy. 1327 A. The Relevance of Prior Occupancy. 1327 B. Prior Occupancy as Proxy. 1329 1. Immigration and consent. 1330 2. The role of treaties. 1331 3.... 1993 Yes
Vicki J. Limas Employment Suits Against Indian Tribes: Balancing Sovereign Rights and Civil Rights 70 Denver University Law Review 359 (1993) The proliferation of employment suits in state and federal court is mirrored in the courts of Indian tribes that employ people in tribal government and commercial enterprises. The employment relationship provides a fertile source of litigation in federal and state courts; not only is it heavily regulated by statute, but numerous common law theories... 1993 Yes
Timothy W. Joranko Exhaustion of Tribal Remedies in the Lower Courts after National Farmers Union and Iowa Mutual: Toward a Consistent Treatment of Tribal Courts by the Federal Judicial System 78 Minnesota Law Review 259 (December, 1993) In National Farmers Union Insurance Cos. v. Crow Tribe and Iowa Mutual Insurance Co. v. LaPlante, the Supreme Court ruled that defendants in tribal court actions must exhaust available tribal court remedies before proceeding with a parallel action in federal court. At the same time, the Court held that defendants could challenge the tribal court's... 1993 Yes
Allison M. Dussias Geographically-based and Membership-based Views of Indian Tribal Sovereignty: the Supreme Court's Changing Vision 55 University of Pittsburgh Law Review Rev. 1 (Fall, 1993) C1-2Table of Contents I. The Cherokee Cases. 6 A. Cherokee Nation v. Georgia. 6 B. Worcester v. Georgia. 12 II. Geographically-based and Membership-based Sovereignty in Recent Supreme Court Cases. 17 A. Tribal Court Criminal Jurisdiction. 18 1. Tribal Court Criminal Jurisdiction Over Tribal Members. 21 2. Tribal Court Criminal Jurisdiction Over... 1993 Yes
John H. Mcclanahan Indian Law-Tribal Sovereignty-congress, Please Help Again-the Cheyenne River Sioux Tribe Cannot Regulate Hunting and Fishing Because the Non-Indian Interest Controls. South Dakota v. Bourland, 113 S.ct. 2309 (1993). 29 Land and Water Law Review 505 (1993) Before 1988, both the Cheyenne River Sioux Tribe and the State of South Dakota had successfully negotiated the issue of regulatory authority over hunting and fishing activities on Cheyenne River Reservation lands, and had each enforced their respective game and fish regulations. However, a dispute arose between the State of South Dakota and the... 1993 Yes
Christina D. Ferguson Martinez v. Santa Clara Pueblo: a Modern Day Lesson on Tribal Sovereignty 46 Arkansas Law Review 275 (1993) How has our own country treated its oldest and most persisting minority, the Indians; how has it treated them, and how is it treating them now? President Franklin D. Roosevelt Like the miner's canary, the Indian marks the shift from fresh air to poison air in our political atmosphere . our treatment of Indians, even more than our treatment of other... 1993 Yes
June Starr , Kenneth C. Hardy Not by Seeds Alone: the Biodiversity Treaty Native Agriculture 12 Stanford Environmental Law Journal 85 (1993) We have to ask what kind of relationship can our advanced culture have with primitive nature and how can we nurture and be nurtured by nature? Maintaining and preserving the delicate balance of each ecosystem is central to any attempt to halt the ecological damage to our planet. As scientific studies reveal, balanced ecosystems do not develop... 1993 Yes
Greg Overstreet R Native American: a Conservative Proposal to Restore Tribal Sovereignty and Self-reliance to Federal Indian Policy 14 Hamline Journal of Public Law and Policy Pol'y 1 (Fall, 1993) How did the political condition of the Native American deteriorate from total freedom and self-reliance to powerlessness and dependency? How did the legal status of the American Indian tribe erode from a sovereign nation to a collection of federal wards? During the American Revolutionary War era, Indian tribes were fully sovereign nations,... 1993 Yes
Patricia Thompson Recognizing Sover Native Villages after the Passage of Ancsa 68 Washington Law Review 373 (April, 1993) Abstract: The federal law principles of tribal sovereignty and Indian country define the parameters of tribal self-governance. In Alaska, however, federal and state courts remain divided on the issues of Alaska Native Village sovereignty and Indian country. This Comment examines the state and federal court treatment of these issues, and concludes... 1993 Yes
Amelia A. Fogleman Sovereign Immunity of Indian Tribes: a Proposal for Statutory Waiver for Tribal Businesses 79 Virginia Law Review 1345 (September, 1993) The notion that the king can do no wrong is an ancient one, dating back at least to the feudal ages and possibly beyond. For centuries, the doctrine of sovereign immunity has insulated kings, emperors, and democratic states from legal actions by the people. From Ancient Greece to Nazi Germany to today's Third World, t he historical and... 1993 Yes
Leah L. Lorber State Rights, Tribal Sovereignty, and the "White Man's Firewater": State Prohibition of Gambling on New Indian Lands 69 Indiana Law Journal 255 (Winter, 1993) Indian-sponsored gambling, from bingo parlors to Las Vegas-style casinos, exploded onto tribal lands during the 1980's. Essentially free from state regulation, Indian gaming halls bring millions of dollars a year to scores of once economically depressed Indian communities. Now, with the success of on-reservation gaming, tribes are seeking to... 1993 Yes
Edmond F. Leedham, III The Indian Gaming Controversy in Connecticut: Forging a Balance Between Tribal Sovereignty and State Interests 13 Bridgeport Law Review 649 (Spring, 1993) The United States has often been described as a melting pot in which people of diverse ethnic and cultural origins have merged together to form a coherent citizenry. While many Americans, especially those who witnessed the racial tensions that plagued the nation during the spring of 1992, might debate the validity of the melting pot analogy, even... 1993 Yes
T. Barton French, Jr. The Indian Gaming Regulatory Act and the Eleventh Amendment: States Assert Sovereign Immunity Defense to Slow the Growth of Indian Gaming 71 Washington University Law Quarterly 735 (Fall, 1993) I firmly believe that we now stand at a crossroads, at a point where we may seize the opportunity to acknowledge the Indians' unequivocal right to self-determination and invite the Indian tribes into the American mainstream. . . . [T]he possibility [exists] that the tribes can fully participate in our economic prosperity while they retain . . .... 1993 Yes
Eric D. Jones The Indian Gaming Regulatory Act: a Forum for Conflict among the Plenary Power of Congress, Tribal Sovereignty, and the Eleventh Amendment 18 Vermont Law Review 127 (Fall, 1993) In October 1988 the Indian Gaming Regulatory Act (IGRA) became federal law. At the time, many believed that IGRA was the long-awaited answer to a call for congressional action in the field of Native American reservation gambling. Time and litigation, however, have demonstrated that IGRA has not only failed to address the need for effective... 1993 Yes
Edward D. Re The Roman ConTribution to the Common Law 39 Loyola Law Review 295 (Summer 1993) It is a genuine pleasure and privilege to deliver a lecture which honors the memory of a dear friend, an outstanding Catholic scholar who devoted a long life in the service of the law. This is the second occasion on which I have been so singularly honored to give a lecture which bears the name of Dr. Brendan F. Brown. Personally, and on behalf of... 1993 Yes
Kenton Keller Pettit The Waiver of Tribal Sovereign Immunity in the Contractual Context: Conflict Between the Ninth Circuit and the Alaska Supreme Court? 10 Alaska Law Review 363 (December, 1993) Over the last decade, the Alaska Supreme Court has seriously eroded the potential protection provided to Native groups by the doctrine of sovereign immunity. It is well established that Indian tribes, like other governmental entities, enjoy the protection of sovereign immunity until it is waived. The United States Supreme Court has held that in... 1993 Yes
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