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Full-Text Articles in Law
A Failure Of Expression: How The Provisions Of The U.S. Bankruptcy Code Fail To Abrogate Tribal Sovereign Immunity, Greggory W. Dalton
A Failure Of Expression: How The Provisions Of The U.S. Bankruptcy Code Fail To Abrogate Tribal Sovereign Immunity, Greggory W. Dalton
Washington Law Review
Sections 106(a) and 101(27) of the U.S. Bankruptcy Code use the general phrase "other foreign or domestic government" to abrogate sovereign immunity without specifically referencing Indian tribes. The U.S. Supreme Court has not yet decided whether these sections of the Code abrogate tribal sovereign immunity, and lower court decisions have come to varying conclusions. As a general rule, Indian tribes are immune from suit due to their inherent sovereignty. Congress, however, may abrogate the sovereign immunity of tribes by unequivocally stating its intent to do so in a statute. When interpreting abrogation provisions in a statute, courts have only found …
Australia's "New Arrangements In Indigenous Affairs": A New Approach Or A New Paternalism?, Joshua M. Piper
Australia's "New Arrangements In Indigenous Affairs": A New Approach Or A New Paternalism?, Joshua M. Piper
Washington International Law Journal
The Aboriginal and Torres Strait Islander Commission (“ATSIC”) opened its doors in 1990 with the main objectives of advising the Australian Commonwealth Government (“Government”) on Indigenous policy and providing services for Indigenous communities and individuals. Fifteen years later, with Indigenous living standards still well behind other Australians, the Government deemed ATSIC a failure and abruptly gutted and abolished the Commission. At the same time, the government transitioned to its New Arrangements in Indigenous Affairs program (“New Arrangements”). The New Arrangements are based on two fundamental ideas: better coordination between governments and agencies; and, most important, engaging and empowering Indigenous communities …
Using International Law More Effectively To Secure And Advance Indigenous Peoples' Rights: Towards Enforcement In U.S. And Australian Domestic Courts, John D. Smelcer
Using International Law More Effectively To Secure And Advance Indigenous Peoples' Rights: Towards Enforcement In U.S. And Australian Domestic Courts, John D. Smelcer
Washington International Law Journal
Over the past three decades, indigenous peoples have effected a remarkable redefinition of their status and rights under international law, giving rise to an emerging distinct customary international law of indigenous peoples’ rights. Though that process is ongoing, the next critical step is enforcing these congealing rights “at home” in the domestic courts of indigenous peoples’ surrounding nations. Australia and the United States provide the most difficult and most revealing contexts in which to explore the possibilities and limitations of this necessary next step. The direct enforcement of the emerging customary international law of indigenous peoples’ rights is not yet …
Indian Water Rights And The Federal Trust Responsibility, Robert T. Anderson
Indian Water Rights And The Federal Trust Responsibility, Robert T. Anderson
Articles
Although federal policy shifted from assimilation to pro-tribal positions, the federal courts have quite consistently supported Indian reserved water rights. Indian water rights, however, were neglected by Congress in favor of non-Indian agricultural development in the arid West. Modem litigation over tribal rights takes place primarily in state courts that are tempted to interpret the few U.S. Supreme Court cases in ways that protect existing non-Indian uses over senior tribal water rights. Modern Indian water rights settlements tend to protect existing non- Indian uses while providing substantial benefits for tribes, but in a haphazard manner. This article examines the history …
Indian Water Rights: Litigation And Settlements, Robert T. Anderson
Indian Water Rights: Litigation And Settlements, Robert T. Anderson
Articles
This article provides a brief overview of the law of Indian and federal reserved water rights and continues with an examination of the Snake River Water Rights Act. The Act serves as a vehicle for discussion of what is right and what is wrong with the current Indian water rights settlement process. Finally, the article suggests that the Administration modify the portion of its criteria and procedures for Indian water settlements dealing with federal financial contributions. These criteria and procedures need to more accurately reflect the realities of past settlements and promote more successes like the Snake River Water Rights …