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Full-Text Articles in Law
The Right To Counsel For Indians Accused Of Crime: A Tribal And Congressional Imperative, Barbara L. Creel
The Right To Counsel For Indians Accused Of Crime: A Tribal And Congressional Imperative, Barbara L. Creel
Michigan Journal of Race and Law
Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it …
Towards A Balanced Approach For The Protection Of Native American Sacred Sites, Alex Tallchief Skibine
Towards A Balanced Approach For The Protection Of Native American Sacred Sites, Alex Tallchief Skibine
Michigan Journal of Race and Law
Protection of "sacred sites" is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples. The Supreme Court in Oregon v. Smith held that rational basis review, and not strict scrutiny, was the appropriate level of judicial review when evaluating the constitutionality of neutral laws of general applicability even when these laws impacted one's ability to practice a religion. Reacting to the decision, Congress enacted the Relgious Freedom Restoration Act (RFRA), which reinstated the strict scrutiny test for challenges to neutral laws of general …
Abandoning The Pia Standard: A Comment On Gila V, Galen Lemei
Abandoning The Pia Standard: A Comment On Gila V, Galen Lemei
Michigan Journal of Race and Law
Part I of this Note examines the development of Indian reserved water rights, and the practicably irrigable acreage method of quantifying those rights, as defined by the Court. Part II describes the arguments of state and private interests that oppose broad Indian water rights. Part III discusses Gila V, including the Arizona Supreme Court's rationale for abandoning the standard set forth by the U.S. Supreme Court and the standard for quantifying Indian reserved rights that the court applied in its place. Part IV analyzes the Arizona Supreme Court's justifications for abandoning the standard, and considers alternate grounds for the …
Protecting Native Americans: The Tribe As Parens Patriae, Cami Fraser
Protecting Native Americans: The Tribe As Parens Patriae, Cami Fraser
Michigan Journal of Race and Law
This Note argues that Tribes have parens patriae standing to protect their citizens through litigation on their behalf, even if not all of their citizens are engaged in the litigation. Part I examines the current requirements of parens patriae standing, as articulated by the Supreme Court. Part II briefly examines the nature of tribal sovereignty within American jurisprudence and concludes that parens patriae standing is a retained right of the Tribes. Part III examines the way in which the Federal District Courts have incorrectly handled tribal parens patriae standing. This section argues for a reexamination of Supreme Court doctrine when …