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Indigenous, Indian, and Aboriginal Law Commons™
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Articles 31 - 60 of 89
Full-Text Articles in Indigenous, Indian, and Aboriginal Law
Intent Matters: Assessing Sovereign Immunity For Tribal Entities, Gregory J. Wong
Intent Matters: Assessing Sovereign Immunity For Tribal Entities, Gregory J. Wong
Washington Law Review
Indian tribes create corporations and agencies, such as casinos and economic development organizations, to further tribal goals. When such an entity is sued, the courts must determine whether the entity shares in the tribe's inherent sovereign immunity. Like tribes, the federal and state governments also create corporations and agencies to further their governmental goals. To determine whether such a federal entity shares in the federal government's sovereign immunity, the courts ask if Congress intended to grant the entity immunity from suit. For state entities, courts ask if the state government intended to extend its sovereign immunity to the entity by …
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 …
Putting Flesh On The Bones Of United States V. Winans: Private Party Liability Under Treaties That Reserve Actual Fish For The Tribal Taking, Lindsay Halm
Washington Law Review
One hundred years ago, in United States v. Winans, the United States Supreme Court announced that private parties are subject to the rights reserved by Indians under treaty. Accordingly, tribes enforce their treaty fishing rights in federal court to halt private and government actions that threaten to impair their reserved right to take a fair portion of fish from usual and accustomed fishing stations. In addition to injunctive relief, federal courts may award monetary relief to tribes where Congress limits the treaty fishing right. In general, monetary relief is a remedy against any defendant actor who impairs non-fishing treaty-reserved …
Who Can Defend A Federal Regulation? The Ninth Circuit Misapplied Rule 24 By Denying Intervention Of Right In Kootenai Tribe Of Idaho V. Veneman, Stephanie D. Matheny
Who Can Defend A Federal Regulation? The Ninth Circuit Misapplied Rule 24 By Denying Intervention Of Right In Kootenai Tribe Of Idaho V. Veneman, Stephanie D. Matheny
Washington Law Review
In Kootenai Tribe of Idaho v. Veneman, the United States Court of Appeals for the Ninth Circuit misapplied Rule 24 of the Federal Rules of Civil Procedure by denying intervention of right to organizations that had protectable interests in the adoption and implementation of the Roadless Rule. The court based its decision to deny intervention of right on its federal defendant rule, which bars intervention of right by parties other than the federal government to defend a challenge brought under the National Environmental Policy Act (NEPA). The Kootenai decision extended the reach of the federal defendant rule to include …
Abrogation Or Regulation? How Anderson V. Evans Discards The Makah's Treaty Whaling Right In The Name Of Conservation Necessity, Zachary Tomlinson
Abrogation Or Regulation? How Anderson V. Evans Discards The Makah's Treaty Whaling Right In The Name Of Conservation Necessity, Zachary Tomlinson
Washington Law Review
From 1787 to 1871, the federal government and various Indian tribes entered into hundreds of treaties. Under well-established U.S. Supreme Court precedent, the U.S. Congress has plenary authority to abrogate or modify any of these treaties. The U.S. Supreme Court is reluctant to find congressional intent to do so, however, and requires that this intent be clear and plain. States have no such power to qualify treaties, but the Court has allowed states to regulate treaty rights when doing so is necessary for species conservation. While the U.S. Supreme Court has kept these two lines of cases distinct, the U.S. …
Aboriginal Title Or The Paramountcy Doctrine? Johnson V. Mcintosh Flounders In Federal Waters Off Alsaka In Native Village Of Eyak V. Trawler Diane Marie, Inc., Andrew P. Richards
Aboriginal Title Or The Paramountcy Doctrine? Johnson V. Mcintosh Flounders In Federal Waters Off Alsaka In Native Village Of Eyak V. Trawler Diane Marie, Inc., Andrew P. Richards
Washington Law Review
In Johnson v. McIntosh and its progeny, the United States Supreme Court established the principle that aboriginal title allows Indian tribes to exclusively use and occupy their territories after they come under United States sovereignty. In Native Village of Eyak v. Trawler Diane Marie, Inc., five Alaska Native villages asserted aboriginal title to areas of the seabed and ocean off Alaska. The villages argued that federal fisheries regulations violate their aboriginal title by allowing non-Natives to fish within those areas, while excluding most of the villagers. The United States Court of Appeals for the Ninth Circuit rejected the villages' …
Extending Winters To Water Quality: Allowing Groundwater For Hatcheries, Amy Choyce Allison
Extending Winters To Water Quality: Allowing Groundwater For Hatcheries, Amy Choyce Allison
Washington Law Review
The Winters Doctrine of federally reserved water rights applies to groundwater and water quality. Because most Indian tribes would have no water rights under state law, the reserved water rights doctrine, known as the Winters Doctrine, emerged to establish a federal right to water on Indian reservations sufficient to fulfill the purposes of the reservation. The reserved water rights doctrine originated in Winters v. United States, which was preceded by two cases upholding the federal government's right to reserve certain water rights. Winters rested on one of the Canons of Construction for Indian treaties that require agreements involving Indians …
A Lack Of Trust: South Dakota V. Yankton Sioux Tribe And The Abandonment Of The Trust Doctrine In Reservation Diminishment Cases, A.J. Taylor
Washington Law Review
Over the past three decades, the U.S. Supreme Court has repeatedly confronted the issue of whether Indian reservation lands sold to non-Indian settlers at the turn-of-the-century under Congress's allotment policy remain tribal territory for jurisdictional purposes. As the means of adjudicating these reservation diminishment cases, the Court has adopted a troubled three-pronged analytical approach. The Court's approach circumvents well-established rules of construction and diverges significantly from historic principles embodied in the trust doctrine that forms the ideological foundation of Indian law. The Court's recent decision in South Dakota v. Yankton Sioux Tribe exposes important shortcomings in the Court's multi-factor analysis …
Overextended Borrowing: Tribal Peacemaking Applied In Non-Indian Disputes, Carole E. Goldberg
Overextended Borrowing: Tribal Peacemaking Applied In Non-Indian Disputes, Carole E. Goldberg
Washington Law Review
Respected figures within the U.S. legal system are saying that the system could be improved by borrowing elements from Native American dispute resolution. To longtime students of Indian Law, this is a striking shift of rhetoric. Historically, non-Indian America has either ignored or dismissed tribal law, often characterizing tribes as lawless. But has the rhetoric merely shifted from condescension to impractical romanticizing? This article examines and analyzes the position taken by non-Indian advocates of borrowing from tribal justice systems and considers whether such borrowing can really work.
Wolf Warriors And Turtle Kings: Native American Law Before The Blue Coats, Rennard Strickland
Wolf Warriors And Turtle Kings: Native American Law Before The Blue Coats, Rennard Strickland
Washington Law Review
One of the great myths of the white invention of the Indian was that there was no law among Native Americans before the white man except for a single Indian "primitive" legal system of blood revenge, uniform across the North American continent. This is not so. Law existed among Native Peoples long before white contact. Quite simply, the Indians had law. Before white contact, Native America nourished a rich and diverse system of law-a system of law that varied dramatically from people to people.
Indian Tribes And The Legal System, Ralph W. Johnson
Indian Tribes And The Legal System, Ralph W. Johnson
Washington Law Review
This article surveys the past and present role of lawyers in the field of Indian law, from the absence of attorneys in early treaty negotiations through the formative role lawyers played in developing the federal trust relationship, to their modem role as "legal warriors" for the increasingly independent, autonomous tribes of today. To understand all the changes now occurring in Indian law, a review of the background is helpful. What follows is a synopsis of the significant events in Indian history, focusing on how the U.S. government initially treated Indians and the role the legal profession played in this treatment.
The Role Of Bilateralism In Fulfilling The Federal-Tribal Relationship: The Tribal Rights-Endangered Species Secretarial Order, Charles Wilkinson
The Role Of Bilateralism In Fulfilling The Federal-Tribal Relationship: The Tribal Rights-Endangered Species Secretarial Order, Charles Wilkinson
Washington Law Review
On June 5, 1997, Secretary of the Interior Bruce Babbitt and Secretary of Commerce William Daley signed a jointly-released Secretarial Order entitled "American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act"' The Order culminated a year-and-a-half of work by tribes and federal officials to craft an administrative system for resolving difficult questions involving tribal rights and the Endangered Species Act (ESA). The Order is important for the ESA's implementation. It also carries broader significance, for it serves as one major example of how the government-to-government relationship between the United States and Indian tribes can be successfully implemented.
One Size Does Not Fit All: The Failure Of Washington's Licensing Standards For Alcohol And Drug Treatment Programs And Facilities To Meet The Needs Of Indians, Kelly S. Croman
Washington Law Review
It is well recognized that culturally and spiritually relevant alcohol and chemical dependency treatment programs are most successful. Washington's licensing standards for such programs and facilities, however, fail to address the cultural and spiritual needs of Indians who they serve. The State's current one-size-fits-all approach offers no hope for improved treatment outcomes for Indians. This Comment demonstrates the inadequacy of Washington's current treatment facility and program licensing standards and examines the high costs of maintaining these standards. The Comment concludes with a proposal for specific legislation for the State of Washington.
The Sense Of Justice And The Justice Of Sense: Native Hawaiian Sovereignty And The Second "Trial Of The Century", William H. Rodgers Jr.
The Sense Of Justice And The Justice Of Sense: Native Hawaiian Sovereignty And The Second "Trial Of The Century", William H. Rodgers Jr.
Washington Law Review
In 1993, Congress apologized to the Native Hawaiians for the political funny business of a century ago when the pineapple and sugar interests overthrew the Kingdom of Hawaii with tactical help from U.S. officials. Another apology will be in order for an unconscionable political trial now underway in the islands to punish one of the sovereignty leaders, Dennis "Bumpy" Kanahele, for a variety of imagined offenses that amount to the infliction of embarrassment on the U.S. To put this essay in context, it should be understood, first of all, that the struggle for Native Hawaiian lands and sovereignty is a …
The Indian Child Welfare Act: Guiding The Determination Of Good Cause To Depart From The Statutory Placement Preferences, Denise L. Stiffarm
The Indian Child Welfare Act: Guiding The Determination Of Good Cause To Depart From The Statutory Placement Preferences, Denise L. Stiffarm
Washington Law Review
Since 1978, custody proceedings involving Indian children have been subject to the provisions of the Indian Child Welfare Act. The substantive provisions of the Act set forth placement preferences for state courts to follow when determining adoptive, preadoptive, and foster care placement of Indian children. While the Act directs that the preferences are to be followed in the absence of good cause to the contrary, it does not include a corresponding definition of what constitutes good cause. The result under this vague standard has been a lack of uniformity in state court treatment of the "good cause" determination. This Comment …
Tribal Water Quality Standards Under The Clean Water Act: Protecting Traditional Cultural Uses, William C. Galloway
Tribal Water Quality Standards Under The Clean Water Act: Protecting Traditional Cultural Uses, William C. Galloway
Washington Law Review
Since 1987, the Clean Water Act has allowed Indian tribes to be treated as states for various purposes under the Act. Among the regulatory powers of states under the Clean Water Act is the ability to set water quality standards, subject to approval by the Environmental Protection Agency (EPA). Upstream pollution dischargers must comply with a downstream state's water quality standards once it is established that an upstream discharge demonstrably impacts downstream water quality. The power to set water quality standards represents a new and potentially powerful tool to protect traditional uses and enhance reservation environments, but only if tribes …
Easements By Necessity: A Threshold For Inholder Access Rights Under The Alaska National Interest Lands Conservation Act, Galen G.B. Schuler
Easements By Necessity: A Threshold For Inholder Access Rights Under The Alaska National Interest Lands Conservation Act, Galen G.B. Schuler
Washington Law Review
Nineteenth Century federal land grants created a legacy of private lands surrounded by federal land in the American West. Owners of such lands (inholders) were routinely granted access across federal land by implicit common law rights until the 1960s when federal land policy became more restrictive. In 1981, the Ninth Circuit held that the Alaska National Interest Lands Conservation Act (ANILCA) provided a statutory entitlement for inholder access. Since then, the Ninth Circuit also has held that ANILCA preempts any common law access rights. This Comment argues that the common law doctrine of easements by necessity remains a threshold basis …
From Quantification To Qualification: A State Court's Distortion Of The Law In In Re General Adjudication Of All Rights To Use Water In The Big Horn River System, Berrie Martinis
Washington Law Review
The Wyoming Supreme Court applied state law to Indian reserved water rights in its recent decision in In re General Adjudication of All Rights to Use Water in the Big Horn River System (Big Horn III). Prior to Big Horn III, courts never applied state law to such rights. This Note argues that the Wyoming decision contradicts federal reserved water rights law and federal Indian law, and concludes that Congress should enact legislation overturning the Big Horn III decision.
Recognizing Sovereignty In Alaska Native Villages After The Passage Of Ancsa, Patricia Thompson
Recognizing Sovereignty In Alaska Native Villages After The Passage Of Ancsa, Patricia Thompson
Washington Law Review
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 that Native Villages are sovereign tribes and the lands set aside under the Alaska Native Claims Settlement Act should define the boundaries of Indian country in Alaska.
They Never Kept But One Promise—County Of Yakima V. Confederated Tribes And Bands Of The Yakima Indian Nation, 112 S. Ct. 683 (1992), Deborah Jo Borrero
They Never Kept But One Promise—County Of Yakima V. Confederated Tribes And Bands Of The Yakima Indian Nation, 112 S. Ct. 683 (1992), Deborah Jo Borrero
Washington Law Review
Despite congressional efforts to promote tribal self-determination and self-governance, the Supreme Court continues to give effect to disastrous assimilative policies of the past. A particularly far-reaching case, County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, upheld state property taxation of tribal land within an Indian reservation. The decision neglects tribal sovereignty and contradicts federal policy. After Yakima Indian Nation, tribalism is in serious jeopardy once again. This Note examines Yakima Indian Nation and concludes that Congress must intervene to protect tribes from state property taxes to preserve tribal land and sovereignty.
Tribal Businesses And The Uncertain Reach Of Tribal Sovereign Immunity: A Statutory Solution, Steve E. Dietrich
Tribal Businesses And The Uncertain Reach Of Tribal Sovereign Immunity: A Statutory Solution, Steve E. Dietrich
Washington Law Review
The effect of tribal sovereign immunity on business transactions is difficult to predict, despite the doctrine's often dramatic importance. Unlike the sovereign immunities of state, federal, and foreign governments, the scope of tribal immunity is not defined by statute. Some courts have applied the doctrine in a manner that is contrary to federal Indian law and policy. The resulting unpredictability hampers tribal economic development. This Comment proposes a federal tribal immunity statute that would affirm the general principles of the common law and explicitly immunize all entirely tribal-owned enterprises whether operating on- or off-reservation.
Where Do The Buffalo Roam? Determining The Scope Of American Indian Off-Reservation Hunting Rights In The Pacific Northwest, Bradley I. Nye
Where Do The Buffalo Roam? Determining The Scope Of American Indian Off-Reservation Hunting Rights In The Pacific Northwest, Bradley I. Nye
Washington Law Review
Courts have failed to develop a uniform test to determine the extent of Indian off-reservation hunting rights in the Pacific Northwest. Though the language guaranteeing these rights is consistent from treaty to treaty, analysis of this language varies widely from court to court. The United States Supreme Court employs three well-founded canons of construction in its interpretations of Indian treaties. These same principles should be applied by lower courts to determine the extent of off-reservation hunting rights. Consistent use of accepted canons of treaty construction would add much certainty to an area of law plagued by uncertainty and controversy.
Sparrow And Lone Wolf: Honoring Tribal Rights In Canada And The United States, Matthew D. Wells
Sparrow And Lone Wolf: Honoring Tribal Rights In Canada And The United States, Matthew D. Wells
Washington Law Review
Tribal sovereignty and self-government are essential to Native American cultural survival. Current limitations on Congress' plenary power in Indian affairs are inadequate to protect these core tribal rights. This Comment examines recent developments in Canadian law and proposes legislation following the Canadian example to better protect core tribal rights in the United States.
Fragile Gain: Two Centuries Of Canadian And United States Policy Toward Indians, Ralph W. Johnson
Fragile Gain: Two Centuries Of Canadian And United States Policy Toward Indians, Ralph W. Johnson
Washington Law Review
The United States and Canada share a common history in their policies toward and legal treatment of the Native Americans that historically have occupied both countries. The Royal Proclamation of 1763 established a policy of recognizing Aboriginal title and treating with Indians that was binding on the colonies that preceded both countries, and influenced both governments in later dealings with tribes. Assimilationist themes are evident as well in the national policy toward Indians in both countries. Nevertheless, historically and in the present, national policies and laws of the two governments can be contrasted. This Article sets forth a detailed comparison …
The Decline Of Tribal Sovereignty: The Journey From Dicta To Dogma In Duro V. Reina, 110 S. Ct. 2053 (1990), Peter Fabish
The Decline Of Tribal Sovereignty: The Journey From Dicta To Dogma In Duro V. Reina, 110 S. Ct. 2053 (1990), Peter Fabish
Washington Law Review
In Duro v. Reina, the Supreme Court held that tribal courts do not have jurisdiction over Indians committing crimes within their territorial jurisdiction, but not belonging to their tribe. This holding is incompatible with judicial precedent as well as contemporary executive and congressional policy. The decision also creates serious practical problems for tribal, federal and state authorities by leaving a jurisdictional void over nonmember Indian criminals. A holding that tribal courts have jurisdiction over all tribal Indians who commit crimes on reservations would have been in harmony with judicial, congressional and executive precedent, and would not have created equal protection …
The Imprimatur Of Recognition: American Indian Tribes And The Federal Acknowledgment Process, Rachael Paschal
The Imprimatur Of Recognition: American Indian Tribes And The Federal Acknowledgment Process, Rachael Paschal
Washington Law Review
The Bureau of Indian Affairs administers a program to federally acknowledge unrecognized Indian tribes. The federal acknowledgment process requires that petitioning tribes meet stringent anthropological, historical, and genealogical criteria. These criteria, however, do not accurately reflect prior standards of federal recognition, and the Bureau of Indian Affairs inconsistently interprets them from petition to petition. This Comment describes the background of federal recognition in the executive branch of the government and analyzes the program and its criteria through a comparison of BIA-issued final decisions. This Comment further suggests reform of the federal acknowledgment process through legislative restructuring. In particular, the legislature …
Not On Claims Alone: Determining Indian Title To Intertidal Lands—United States V. Aam, 887 F.2d 190 (9th Cir. 1989), Andrea Geiger Oakley
Not On Claims Alone: Determining Indian Title To Intertidal Lands—United States V. Aam, 887 F.2d 190 (9th Cir. 1989), Andrea Geiger Oakley
Washington Law Review
The equal footing doctrine creates a presumption against conveyance of the beds of navigable waters by the United States prior to statehood. Where submerged lands lie within the boundaries of an Indian reservation, the presumption may conflict with the canons of construction applicable in Indian law. In United States v. Aam, the Ninth Circuit attempted to resolve this conflict by establishing a per se test to determine when the presumption is rebutted. This Note examines the Ninth Circuit's opinion and concludes that in light of the respective policies underlying the conflicting doctrines, the court's test gives insufficient weight to the …
Solutions For Uneasy Neighbors: Regulating The Reservation Environment After Brendale V. Confederated Tribes & Bands Of Yakima Indian Nation, 109 S. Ct. 2994 (1989), Craighton Goeppele
Solutions For Uneasy Neighbors: Regulating The Reservation Environment After Brendale V. Confederated Tribes & Bands Of Yakima Indian Nation, 109 S. Ct. 2994 (1989), Craighton Goeppele
Washington Law Review
The United States Supreme Court's decision in Brendale v. Confederated Tribes & Bands of Yakima Indian Nation undermines comprehensive land use planning in some parts of Indian reservations and contributes to an environment of legal uncertainty on reservations. The loss of effective land use planning on Indian reservations will have an adverse impact on the interests of both tribal members and non-members. Extension of Brendale to other forms of environmental regulation would have an even more detrimental impact on the responsible development of reservations. This Note exposes the infeasibility of Brendale and suggests a cooperative approach for resolving jurisdictional conflicts …
Control Of The Reservation Environment: Tribal Primacy, Federal Delegation, And The Limits Of State Intrusion, Judith V. Royster, Rory Snowarrow Fausett
Control Of The Reservation Environment: Tribal Primacy, Federal Delegation, And The Limits Of State Intrusion, Judith V. Royster, Rory Snowarrow Fausett
Washington Law Review
Inter-sovereign disputes over environmental regulation in Indian country are increasingly common. The federal government, individual states, and native nations all assert interests in controlling pollution on Indian reservations; the question of which sovereign should regulate in this area presents complex issues of federal law, native self-determination, and state autonomy. In this Article, the authors trace the roots of federal, state, and tribal authority to control events within reservation boundaries. Applying a three-tiered analysis to the problem, the authors examine: express federal preemption of state pollution control laws; federal program delegation to native governments as a bar to state regulation; and …
Land Tenure In The Pacific: The Context For Native Hawaiian Land Rights., Charles F. Wilkinson
Land Tenure In The Pacific: The Context For Native Hawaiian Land Rights., Charles F. Wilkinson
Washington Law Review
I met Maivân Clech Lâm at a conference on Hawaiian Native Sovereignty in May 1987. At that time we discussed her research on Native Hawaiian land rights and discovered many parallels to the land rights of Native Americans. At the request of the editors of the Washington Law Review, I am very pleased to write this introduction to Ms. Lâm's important work, which deals at once with the unique situation in Hawai'i and with the overriding issues relating to aboriginal peoples the world over.