Indigenous, Indian, and Aboriginal Law Commons^™

The Supreme Court's Indian Law Decisions: Deviations From Constitutional Principles And The Crafting Of Judicial Smallpox Blankets, Gloria Valencia-Weber

Faculty Scholarship

The first section discusses sovereignty and the sources for foundational principles that pertain to the relationships among tribes, the states, and the federal government. The sources are the documented discourse and covenants of the constitutional evolution, the Articles of Confederation and Perpetual Union (Articles), and the Constitution of 1787 as they developed state jurisdiction related to Indian matters. Second, the paper discusses the colonial period and reality versus the fictions or myths of discovery and conquest. Third, the paper covers the conflict and unity in the pre-Revolutionary period. Fourth, the paper considers the Articles as the first U.S. model to …

Toward A Great Sioux Nation Judicial Support Center And Supreme Court: An Interim Planning And Recommendation Report For The Wakpa Sica Historical Society’S Reconciliation Place Project, John P. Lavelle, Frank Pommersheim

Faculty Scholarship

This Interim Planning and Recommendation Report describes the significance and potential benefits of the Wakpa Sica Historical Society’s Reconciliation Place Project in its endeavor to facilitate the establishment of a Great Sioux Nation Supreme Court. The report emphasizes that the vision of establishing such a Court has existed among the Sioux tribes of South Dakota, North Dakota, and Nebraska for generations and that the project’s legitimacy and ultimate success depend on its ability to continue fostering the tribes’ endorsement of and participation in the Court’s development and implementation.

Powers Inherent In Sovereignty: Indians, Aliens, Territories, And The Nineteenth Century Origins Of Plenary Power Over Foreign Affairs, Sarah H. Cleveland

Faculty Scholarship

Does the United States have powers inherent in sovereignty? At least since the 1819 decision in McCulloch v. Maryland, conventional wisdom has held that national government is one of limited, enumerated powers and exercises “only the powers granted to it” by the Constitution and those implied powers “necessary and proper” to the exercise of the delegated powers. All powers not delegated to the federal government are reserved to the states and to the people. In the 1936 decision in United States v. Curtiss-Wright Export Corp., however, the Supreme Court asserted that federal authority over foreign relations operated independently …

Rice V. Cayetano: The Supreme Court Declines To Extend Federal Indian Law Principles To Native Hawaiians Sovereign Rights, Jeanette Wolfley

Faculty Scholarship

As I read and reread the Rice decision, I realized how similar it is to the trend in the recent Indian law cases decided by the Supreme Court. For example, Rice, in many respects, represents the discomfort the Justices feel for upholding "special treatment" of Native Americans under the law. The Court in Rice reversed the Ninth Circuit's decision allowing the State of Hawaii to conduct a Natives-only election of trustees to administer a trust to benefit Native Hawaiians. It found that the Fifteenth Amendment, adopted after the Civil War to prevent states from denying the elective franchise to former …

Rescuing Paha Sapa: Achieving Environmental Justice By Restoring The Great Grasslands And Returning The Sacred Black Hills To The Great Sioux Nation, John P. Lavelle

Faculty Scholarship

Looking at a unique proposal of the Conservation Alliance of the Great Plains for establishing a "Greater Black Hills Wildlife Protected Area" in the Northern Plains region. Especially in light of the proposal's potential impacts on the continuing efforts of the Sioux tribes of this region to secure the return of the sacred Black Hills to sovereign tribal ownership.

Strengthening Tribal Sovereignty Through Indian Participation In American Politics: A Reply To Professor Porter, John P. Lavelle

Faculty Scholarship

A rebuttal to Porter's recent article The Demise of the Ongwehoweh and the Rise of the Native Americans: Redressing the Genocidal Act of Forcing American Citizenship upon Indigenous Peoples

Recurring Problems In Indian Gaming, Kevin Washburn

Faculty Scholarship

This essay briefly summarizes the history and legal framework of Indian gaming, describes the recent growth in the industry, and discusses some of the legal controversies that have been repeated across the country as states and tribes adjust to their respective roles in the Indian gaming industry.

The Rise Of Urban Archipelagoes In The American West: A New Reservation Policy?, James R. Rasband

Faculty Scholarship

No abstract provided.

Protecting The Sacred Sites Of Indigenous People In U.S. Courts: Reconciling Native American Religion And The Right To Exclude, Kevin J. Worthen

Faculty Scholarship

The key to understanding current U. S. caselaw concerning the protection of Native American sacred sites is arguably found in the dissenting opinion of an eighteen-year old case involving not religious freedom, not sacred sites, and not cultural heritage - but the right of Indian tribes to impose severance taxes on non-tribal members who extract oil and gas from tribal lands. In Merrion v. Jicarilla Apache Tribe, Justice Stevens refused to join the majority’s conclusion that the inherent sovereignty of the Jicarilla Apache Tribe included the power to impose such a tax. In his view, a tribe’s authority to regulate …

Sanctioning A Tyranny: The Diminishment Of Ex Parte Young, Expansion Of Hans Immunity, And Denial Of Indian Rights In Coeur D'Alene Tribe, John P. Lavelle

Faculty Scholarship

This Article analyzes a recent decision of the Supreme Court that illustrates the enormous destructive power of the Rehnquist Court's peculiar brand of anti-tribal activism, Idaho v. Coeur d'Alene Tribe. Coeur d'Alene Tribe is likely to heighten the urgency with which Eleventh Amendment scholars have called for an overruling of Hans to ameliorate the damage that Hans and its progeny already have done to the regime of federally protected rights under the Constitution, laws and treaties of the United States-a regime at the core of the Framers' vision of paramount federal law and essential to securing true liberty for all …

The General Allotment Act "Eligibility" Hoax: Distortions Of Law, Policy, And History In Derogation Of Indian Tribes, John P. Lavelle

Faculty Scholarship

A review of the essay, "Federal Indian Identification Policy: A Usurption of Indigenous Sovereignty in Native North America," in the collection of essays, The State of Native America, by M. Annette Jaimes.

[On The] Road Back In: Community Lawyering In Indigenous Communities, Christine Zuni Cruz

Faculty Scholarship

The idea of professional success,especially in the elite legal profession, as being closely linked to community or having corresponding value to the community has directly affected my view of individual lawyering. Excerpts reprinted in: Social Justice: Professionals, Communities and Law, 11 (Mahoney, Calmore, Wildman, eds., 2003); Lawyers Ethics and The Pursuit of Social Justice and Ethics 201 (Susan D. Carle, ed., 2005); Clinical Anthology, Readings for Live-Client Clinics, (2d Ed., A.J. Hurder, et al., eds., 2011).

Panel Discussions From "Indian Nations On The Eve Of The 21st Century, John P. Lavelle, Frank Pommersheim, Larry Long, James Abourezk, Christopher Schneider

Faculty Scholarship

On the afternoon of May 19, 1998, in the University of South Dakota School of Law Courtroom, two panels assembled to discuss current issues in Indian land and water rights. The panels were part of the Fifth Biennial Indian Law Symposium entitled "Indian Nations on The Eve of The Twenty-First Century: Sovereignty, Self-Government, Water Rights, Land Rights." Those panel discussions are reprinted here, with minor stylistic edits.

The first panel, dealing with water rights, included Mark Van Norman, Susan Williams, Robert Cournoyer, Tony Iron Shell, Professor John Davidson, and moderator Robert Gough.

The second panel, dealing with land rights, was …

Strengthening What Remains, Christine Zuni Cruz

Faculty Scholarship

This paper is intended to encourage discussion and stimulate action and thought as well as to support the ongoing work in tribal courts in this area. We are involved in an ongoing process of developing an indigenous body of law and system of justice. We must pay particular attention to how we are going about the development of our court systems and look closely at what is developing. Incorporating customary law, whether wholly or partially, into our developing legal systems makes them truly unique to our individual tribes and reflective of the concepts we, as Indian people, have of law …

Recent Developments, Kevin Washburn

Faculty Scholarship

Summary of cases in the areas of environmental law, taxation of natural resources, and water rights cases involving Native American tribes.

'Trespassers, Beware': Lyda Burton Conley And The Battle For The Huron Place Cemetery, A. Kimberley Dayton

Faculty Scholarship

Lyda Burton Conley, Kansas attorney and direct descendant of the great Wyandot Chief Tarhe, appeared before the Supreme Court in January, 1910 to appeal a dismissal of a lawsuit she had filed against Secretary of the Interior James Garfield in 1907. She was seeking a permanent injunction to prevent the sale of a parcel of land in which her ancestors were buried, by the federal government to private developers. This case appears to be the first on record in which a plaintiff argued that the burying grounds and cemeteries of Native American peoples are entitled to federal protection. This lawsuit …

Review Essay: “Indians Are Us?: Culture And Genocide In Native North America" By Me Monroe, John P. Lavelle

Faculty Scholarship

Indians Are Us? is a collection of commentaries on American Indian political and social affairs, written in the truculent tone that readers have come to expect from writer Ward Churchill. Like its predecessors, Fantasies of the Master Race and Struggle far the Land, this latest Churchill project consists largely of polemical pieces hastily compiled from obscure leftist publications.

The Sovereign Immunity Exception Comment, Henry Paul Monaghan

Faculty Scholarship

Seminole Tribe v. Florida is the 1995 Term's illustration of the importance that a narrow, but solid, five-Justice majority of the Supreme Court attaches to the constitutional underpinnings of "Our Federalism." In Seminole Tribe, this majority declared that Congress lacks authority under its Article I, Section 8 regulatory powers to subject unconsenting states to suits initiated in federal court by private persons. The very same majority had previously made clear its intention to implement the original constitutional understanding of a national government of limited powers, especially when the national government attempted to "commandeer" state legislative and administrative processes. This …

Law School Training Of American Indians As Legal-Warriors, Gloria Valencia-Weber

Faculty Scholarship

This article explores four areas involved in training lawyers appropriate to the needs of tribal nations. First, the American Indian tribes, as the indigenous sovereigns, present legal needs and opportunities unique from other minority groups. Development of Indian law depends on the exercise of sovereign power by the Indian nations, not constitutional equal protection of an ethnic minority. The architectural work of developing the governments, i.e., creating tribal law and operating tribal courts, calls for the legal-warrior's critical ability to meld customary perspectives with knowledge and skills acquired in legal professional training. Second, the specialty of American Indian law as …

Shrinking Indian Country: A State Offensive To Divest Tribal Sovereignty, Gloria Valencia-Weber

Faculty Scholarship

In Sac and Fox, the Oklahoma Tax Commission (OTC) argued that the Sac and Fox reservation was disestablished in the 1891 Allotment Agreement, and therefore the tribe was deprived of a cognizable land base on which it could exercise governmental power immune from the reach of the state. Based on this characterization of the land base, the OTC then argued that it could reach into Sac and Fox land and impose income and vehicle taxes. The tribe, of course, rejected any such characterization of its land base and resisted any attempt by the state to interfere with its sovereign control …

Identity As Idiom: Mashpee Reconsidered, Jo Carrillo

Faculty Scholarship

No abstract provided.

Domestic Violence And Tribal Protection Of Indigenous Women In The United States, Christine Zuni Cruz, Gloria Valencia-Weber

Faculty Scholarship

The purpose of this article is to discuss openly the issue of the physical abuse of American Indian women in a manner that reflects the authors' knowledge of how American Indian people live. This article confronts presumptions or pre-existing notions about the indigenous people of the United States that pervade popular culture. Initially, this article will examine the sovereign nature of the tribal nations within the parameters of both international law and United States jurisprudence. This article will also address the way in which some international instruments relate to the rights and protection of indigenous people, including specific provisions for …

Recognizing And Enforcing State And Tribal Judgments: A Round Table Discussion Of Law, Policy And Practice, Christine Zuni Cruz, Mario E. Occhialino Jr., Philip Sam Deloria, Richard E. Ranson Honorable, Robert N. Clinton, Robert Laurence, Nell Jessup Newton

Faculty Scholarship

Let me begin with a word of introduction. For a long time, we at the American Indian Law Center have been interested in and concerned about the growth and strengthening of tribal governmental institutions. Tribal sovereignty is often talked about in the abstract, but people are somewhat reluctant to deal with the practical issues that are involved when sovereignty is actually exercised: the give and take that governments do all the time in their relationships with each other. We tried to take the leadership a number of years ago in looking at some of the practical issues involved in the …

American Indian Law And History: Instructional Mirrors, Gloria Valencia-Weber

Faculty Scholarship

This article is an expanison of a presentation delivered on January 8, 1993 at the Association of American Law Schools annual meeting. The author presents her interdisciplinary approach to teaching a course on Native American Rights.

Surface And Depth: Some Methodological Problems With Bringing Native American Centered Histories To Light, Jo Carrillo

Faculty Scholarship

No abstract provided.

Recognizing And Enforcing State And Tribal Judgments: A Round Table Discussion Of Law, Policy And Practice, Christine Zuni Cruz, Richard E. Ranson Honorable, Philip Sam Deloria, Robert N. Clinton, Robert Laurence, Nell Jessup Newton, Mario E. Occhialino Jr.

Faculty Scholarship

This article was adapted from a roundtable convened to discuss issues regarding full faith and credit between state and tribal court systems.

Tribal sovereignty is often talked about in the abstract, but people are somewhat reluctant to deal with the practical issues that are involved when sovereignty is actually exercised. This discussion looks at some of the practical and political concerns in the governmental relationship between the judicial branches. This area touches the lives of Indian people the most directly and immediately as it impacts the ability of Indian people to do personal business, and business.

Jim Crow, Indian Style: The Disenfranchisement Of Native Americans, Jeanette Wolfley

Faculty Scholarship

This article examines the ongoing struggle of Indians to gain the right to vote and, thus, have a meaningful opportunity to fully participate in the political process. It will discuss historical and modern disenfranchisement and the continued progress toward the goal of political equality envisioned by the fifteenth amendment.

Two Sides Of The Same Coin: The Potential Normative Power Of American Cities And Indian Tribes, Kevin J. Worthen

Faculty Scholarship

People do not normally associate cities with Indian reservations. The mental images typically conjured by each term are radically different. Perhaps for that reason, few think of city governments and tribal governments in similar terms.

However, the two forms of government - cities and Indian reservations - have many things in common. Both are excluded from the federal constitutional framework. Both are subject to the plenary power of one of the constitutionally recognized governments - cities to the state government, tribes to the federal government. Both are the most intimate form of government with which most of their residents are …

Sword Or Shield: The Past And Future Impact Of Western Legal Thought On American Indian Sovereignty (Reviewing Robert A. Williams Jr., The American Indian In Western Legal Thought (1990)), Kevin J. Worthen

Faculty Scholarship

No abstract provided.

Shedding New Light On An Old Debate: A Federal Indian Law Perspective On Congressional Authority To Limit Federal Question Jurisdiction, Kevin J. Worthen

Faculty Scholarship

Examining the ongoing debate concerning congressional power to eliminate federal court jurisdiction over cases arising under federal law from thefederal Indian law viewpoint allows consideration of the issues in a concrete setting. Experience under the Indian Civil Rights Act during the last twenty years indicates that some federal review of actions arising under federal law is needed if the command of the supremacy clause is to be fully effectuated. At the same time, it indicates that a uniform interpretation of that federal law is not essential to the enforcement of the clause. This examination thus provides support for the distributive …