Law Commons^™

The Belloni Decision: A Foundation For The Northwest Fisheries Cases, The National Tribal Sovereignty Movement, And An Understanding Of The Rule Of Law, Charles Wilkinson

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Judge Belloni’s decision in United States v. Oregon, handed down a half-century ago, has been given short shrift by lawyers, historians, and other commentators on the modern revival of Indian treaty fishing rights in the Pacific Northwest. The overwhelming amount of attention has been given to Judge Boldt’s subsequent decision in United States v. Washington and the Passenger Vessel ruling by the Supreme Court affirming Judge Boldt. I’m one who has been guilty of that.

We now can see that United States v. Oregon was the breakthrough. In those early days, Judge Belloni showed deep understanding of the two …

They Were Here First: American Indian Tribes, Race, And The Constitutional Minimum, Sarah Krakoff

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In American law, Native nations (denominated in the Constitution and elsewhere as “tribes”) are sovereigns with a direct relationship with the federal government. Tribes’ governmental status situates them differently from other minority groups for many legal purposes, including equal protection analysis. Under current equal protection doctrine, classifications that further the federal government’s unique relationship with tribes and their members are subject to rationality review. Yet this deferential approach has recently been subject to criticism and is currently being challenged in the courts. Swept up in the larger drift toward colorblind or race-neutral understandings of the Constitution, advocates and commentators are …

Law, Violence, And The Neurotic Structure Of American Indian Law, Sarah Krakoff

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Remarks Of David H. Getches: Federal Bar Association Indian Law Conference (April 7, 2011), David H. Getches

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Hero For The People, Hero For The Land And Water: Reflections On The Enduring Contributions Of David Getches, Charles Wilkinson

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Limiting Principles And Empowering Practices In American Indian Religious Freedoms, Kristen A. Carpenter

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Employment Division v. Smith was a watershed moment in First Amendment law, with the Supreme Court holding that neutral statutes of general applicability could not burden the free exercise of religion. Congress's subsequent attempts, including the passage of Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act, to revive legal protections for religious practice through the legislative and administrative process have received tremendous attention from legal scholars. Lost in this conversation, however, have been the American Indians at the center of the Smith case. Indeed, for them, the decision criminalizing the possession of their peyote sacrament was …

Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide For Judges, Sarah Krakoff

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This Article provides a summary of the law of tribal civil jurisdiction over persons who are not members of the governing tribe ("nonmembers'), followed by an analysis of trends in the lower courts. It was written to respond to a consensus view at the University of Colorado Law Review Symposium: "The Next Great Generation of American Indian Law Judges," in January 2010, that a concise, practical, yet in-depth treatment of this subject would be useful to the judiciary as well as practitioners. The Article traces the development of the Supreme Court's common law of tribal civil judicial jurisdiction from 1959 …

The Last Indian Raid In Kansas: Context, Colonialism, And Philip P. Frickey's Contributions To American Indian Law, Sarah Krakoff

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To many, American Indian law is a remote and anomalous area of the law. To others, including Professor Phil Frickey, themes in American Indian law are central to our identity as a nation, and lessons from the field inform broader understandings of the competencies and limitations of the federal judiciary. One of Professor Frickey’s recurring scholarly arguments is that the federal courts are most within their areas of institutional competence when they approach contemporary Indian law questions as structural disputes between sovereigns, rather than as individual conflicts amenable to the application of mainstream public law values. An event described as …

Conference Transcript: The New Realism: The Next Generation Of Scholarship In Federal Indian Law, Sarah Krakoff

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Keynote Address: Indigenous Peoples And Their Mark On The International Legal System, S. James Anaya

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The Salmon People, Judge Boldt, And The Rule Of Law, Charles F. Wilkinson

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National Identity And Liberalism In International Law: Three Models, Justin Desautels-Stein

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Brief Of Lone Wolf, Principal Chief Of The Kiowas, To The Supreme Court Of The American Indian Nations, S. James Anaya

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Conquering The Cultural Frontier: The New Subjectivism Of The Supreme Court In Indian Law, David H. Getches

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For a century and a half, the Supreme Court was faithful to a set of foundation principles respecting Indian tribal sovereignty. Though the United States can abrogate tribal powers and rights, it can only do so by legislation. Accordingly, the Court has protected reservations as enclaves for Indian self-government, preventing states from enforcing their laws and taxes, and holding that even federal laws could not be applied to Indians without congressional permission. Recently, however, the Court has assumed the job it formerly conceded to Congress, considering and weighing cases to reach results comporting with the Justices' subjective notions of what …

Indian Consent To American Government, Richard B. Collins

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The Idea Of Sovereignty: Native Peoples, Their Lands, And Their Dreams, Charles F. Wilkinson

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The Law Of The American West: A Critical Bibliography Of The Nonlegal Sources, Charles F. Wilkinson

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Indian Allotment Water Rights, Richard B. Collins

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Allotted tribal lands create troublesome questions for western water lawyers. In this article the author reviews the history of basic Indian reservation water rights created by the Supreme Court's landmark decision in Winters v. United States. He then explains the disposition of those rights when reservation lands are allotted. Finally, he discusses the difficult issues that arise when allotted lands pass from the federal trust become subject to state law, and are transferred to non-Indians.

Can A Tribal Court Be Enjoined From Exercising Jurisdiction Over Nonmembers Of The Tribe?, Richard B. Collins

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The Quest To Enforce The Old Promises: Indian Law In The Modern Era, Charles Wilkinson

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Can An Indian Tribe Recover Land Illegally Taken In The Seventeenth Century?, Richard B. Collins

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Water Rights On Indian Allotments, David H. Getches

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Development of individually-held reservation lands for agriculture, mining, or commerce almost always depends on a supply of water. Thus, it is essential that owners of land within a reservation have some certainty of their water rights. No statute or other source, however, expressly defines water rights on Indian allotments. This article attempts to define those water rights by examining the allotment policy and legislation in light of the reserved water rights doctrine. The author concludes that no reserved rights may be held by individuals, but that during the period of trust some of those rights may be used by allottees. …

Perspectives On Water And Energy In The American West And In Indian Country, Charles F. Wilkinson

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Implied Limitations On The Jurisdiction Of Indian Tribes, Richard B. Collins

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American Indian Courts And Tribal Self-Government, Richard B. Collins, Ralph W. Johnson, Kathy Imig Perkins

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Book Review, David Getches

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