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Washington Law Review

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Articles 61 - 89 of 89

Full-Text Articles in Indigenous, Indian, and Aboriginal Law

The Kuleana Act Revisited: The Survival Of Traditional Hawaiian Commoner Rights In Land, Maivân Clech Lâm Apr 1989

The Kuleana Act Revisited: The Survival Of Traditional Hawaiian Commoner Rights In Land, Maivân Clech Lâm

Washington Law Review

The issue of aboriginal land rights raises significant legal and moral questions. The starting point for discussion of Native Hawaiian land rights is the Kuleana Act of 1850. This Act enabled Hawaiian commoners, for the first time in Hawaiian history, to acquire fee simple title to land. The Act did not, however, contain provisions simultaneously terminating their traditional rights in land. What these traditional rights consist of, and to whom they apply, remain relevant issues. The author examines the Act in the context of its surrounding history, laws, and judicial interpretations, and concludes that the Kuleana Act introduced a system …

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Indian Sovereignty: Confusion Prevails—California V. Cabazon Band Of Mission Indians, 107 S. Ct. 1083 (1987), Connie K. Haslam Jan 1988

Indian Sovereignty: Confusion Prevails—California V. Cabazon Band Of Mission Indians, 107 S. Ct. 1083 (1987), Connie K. Haslam

Washington Law Review

The most recent Indian law case before the Supreme Court, California v. Cabazon Band of Mission Indians, involved the rights of states to regulate gambling on federally recognized Indian reservations. The Court ruled in Cabazon that state regulation of tribal gambling operations was not allowed. This Note examines the Court's decision, proposes a more consistent method for application of Public Law 280, and suggests adoption of a new test for Indian law decisions. The balancing test currently used by the Court, which weighs state interests in jurisdiction almost equally against Indian interests, should no longer be used in conjunction …

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Indian Sovereignty: Confusion Prevails—California V. Cabazon Band Of Mission Indians, 107 S. Ct. 1083 (1987), Connie K. Haslam Jan 1988

Indian Sovereignty: Confusion Prevails—California V. Cabazon Band Of Mission Indians, 107 S. Ct. 1083 (1987), Connie K. Haslam

Washington Law Review

The most recent Indian law case before the Supreme Court, California v. Cabazon Band of Mission Indians, involved the rights of states to regulate gambling on federally recognized Indian reservations. The Court ruled in Cabazon that state regulation of tribal gambling operations was not allowed. This Note examines the Court's decision, proposes a more consistent method for application of Public Law 280, and suggests adoption of a new test for Indian law decisions. The balancing test currently used by the Court, which weighs state interests in jurisdiction almost equally against Indian interests, should no longer be used in conjunction with …

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The Status Of Indian Tribes In American Law Today, William C. Canby Jr. Jan 1987

The Status Of Indian Tribes In American Law Today, William C. Canby Jr.

Washington Law Review

In describing the subject of my lecture to Dean Fletcher of this law school, I said that it would deal with two questions: Are the fundamental assumptions underlying the special status of Indian tribes changing? If so, what will be the effect of those changes? I considered simply saying that the answer to the first question is "no" and that the answer to the second question is therefore "none." It would make a mercifully short lecture. Unfortunately, however, my review of legal developments over the past several years, particularly the decisions of the United States Supreme Court, convinces me that …

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The Determination Of Title To Submerged Lands On Indian Reservation, Rick Best Jul 1986

The Determination Of Title To Submerged Lands On Indian Reservation, Rick Best

Washington Law Review

The treatment of submerged lands within Indian reservations provides a classic example of the Indian rights gap. Two possible owners may claim such lands under navigable water: the tribe or one of the several states. Substantial legal and economic significance attaches to ownership. The title may determine fishing rights as well as potentially lucrative mineral rights to gas and oil deposits. When a river is rerouted, the uncovered land may become a valuable recreational or commercial waterfront. Title can also determine criminal jurisdiction for acts taking place on the water. States rely on the equal footing doctrine to claim title …

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The Environmental Right To Habitat Protection: A Sohappy Solution—United States V. Washington, 759 F.2d 1353 9th Cir.), Cert. Denied, 106 S. Ct. 407 (1985), Judith W. Constans Apr 1986

The Environmental Right To Habitat Protection: A Sohappy Solution—United States V. Washington, 759 F.2d 1353 9th Cir.), Cert. Denied, 106 S. Ct. 407 (1985), Judith W. Constans

Washington Law Review

This Note indicates that both the district court's use of declaratory relief on the hatchery fish issue and the merits of its declaration on the environmental issue were entitled to affirmance. An analysis of the procedural history of the case suggests that the court should have decided the environmental issue. An analysis of the right to habitat protection reveals that habitat protection should be regarded as an implied term of the treaty right to take fish and that measuring the scope of the right by the tribes' moderate living needs fulfills the purpose of the treaty fishing clause. The measure …

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Law And Alaska Natives: The Warp And Woof Of A Field Of Law In Transition, Ralph W. Johnson Jan 1986

Law And Alaska Natives: The Warp And Woof Of A Field Of Law In Transition, Ralph W. Johnson

Washington Law Review

A book review of Alaska Natives and American Laws, by David Case (1984).

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Is There Any Indian "Law" Left? A Review Of The Supreme Court's 1982 Term, Russel Lawrence Barsh Nov 1984

Is There Any Indian "Law" Left? A Review Of The Supreme Court's 1982 Term, Russel Lawrence Barsh

Washington Law Review

The Supreme Court's decisions have been characterized by an absence of general principles, which the Justices rationalize as the "particularization" of their analysis. The standards that do appear from time to time, such as "balancing interests" and "implied repeal," are merely euphemisms for discretion. There has been no consistent authorship of opinions because the Justices hold little enthusiasm for Indian law cases, and the Court seems to treat each dispute as if it were a matter of first impression. "Generalizations on this subject have become . . . treacherous" as a result of the Court's failure to make and stick …

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Money Damages For Breach Of The Federal-Indian Trust Relationship After Mitchell Ii—United States V. Mitchell, 103 S. Ct. 2961 (1983), Kimberly T. Ellwanger Jul 1984

Money Damages For Breach Of The Federal-Indian Trust Relationship After Mitchell Ii—United States V. Mitchell, 103 S. Ct. 2961 (1983), Kimberly T. Ellwanger

Washington Law Review

Recently, plaintiffs have relied upon the federal-Indian trust relationship more often to provide a legal basis for holding the federal government liable in money damages for breach of its trust duties. In United States v. Mitchell (Mitchell II) the Supreme Court affirmed a Court of Claims decision holding the United States accountable in money damages for breach of fiduciary duties in its management of forest resources on allotted lands of the Quinault Reservation. Although it had rejected a similar claim by the same plaintiffs based on the General Allotment Act, the Court found that timber management statutes and regulations created …

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The Northwest Power Act And Reserved Tribal Rights, Allen H. Sanders Apr 1983

The Northwest Power Act And Reserved Tribal Rights, Allen H. Sanders

Washington Law Review

Since the implementation of the Act's fish protection provisions will undoubtedly affect the scope of protection provided to Indian tribes, the Act's ambiguities must be interpreted in a way that honors and preserves these reserved tribal rights. This article examines the substantial body of case law applicable to these reserved tribal rights, with particular attention to the major fish protection issues that may arise under the Act.

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Statutory Construction—Wildlife Protection Versus Indian Treaty Hunting Rights—United States V. Fryberg, 622 F.2d 1010 (9th Cir.), Cert. Denied, 449 U.S. 1004 (1980), Karl Forsgaard Dec 1981

Statutory Construction—Wildlife Protection Versus Indian Treaty Hunting Rights—United States V. Fryberg, 622 F.2d 1010 (9th Cir.), Cert. Denied, 449 U.S. 1004 (1980), Karl Forsgaard

Washington Law Review

While hunting for deer on his reservation, Dean Fryberg, an Indian, shot and killed a bald eagle. Although he had a treaty right to hunt on the Tulalip Reservation under the 1855 Treaty of Point Elliot, Fryberg was charged by information with taking a bald eagle in violation of the Eagle Protection Act of 1940. He did not possess a permit which would have allowed such a taking under the Act. This note concludes that the loose test used to find abrogation in Fryberg is unsatisfactory where a statute regulating a nonendangered resource is involved and instead proposes an alternative …

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Contrary Jurisprudence: Tribal Interests In Navigable Waterways Before And After Montana V. United States, Russel Lawrence Barsh, James Youngblood Henderson Nov 1981

Contrary Jurisprudence: Tribal Interests In Navigable Waterways Before And After Montana V. United States, Russel Lawrence Barsh, James Youngblood Henderson

Washington Law Review

In 1974 the Crow Tribal Council enacted a resolution restricting reservation hunting and fishing to tribal members. No distinction was made between lands owned by the tribe or its members and the nearly thirty percent of the reservation area held in fee simple by non-members and the State of Montana. The resolution also purported to govern the Big Horn River, the bed of which the tribe claimed under its 1868 treaty with the United States. The State of Montana refused to recognize the tribe's jurisdiction to enact and enforce this restriction and continued to license non-member hunting and fishing within …

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Contrary Jurisprudence: Tribal Interests In Navigable Waterways Before And After Montana V. United States, Russel Lawrence Barsh, James Youngblood Henderson Nov 1981

Contrary Jurisprudence: Tribal Interests In Navigable Waterways Before And After Montana V. United States, Russel Lawrence Barsh, James Youngblood Henderson

Washington Law Review

In 1974 the Crow Tribal Council enacted a resolution restricting reservation hunting and fishing to tribal members. No distinction was made between lands owned by the tribe or its members and the nearly thirty percent of the reservation area held in fee simple by non-members and the State of Montana. The resolution also purported to govern the Big Horn River, the bed of which the tribe claimed under its 1868 treaty with the United States. The State of Montana refused to recognize the tribe's jurisdiction to enact and enforce this restriction and continued to license non-member hunting and fishing within …

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Issues In Federal, State, And Tribal Taxation Of Reservation Wealth: A Survey And Economic Critique, Russel Lawrence Barsh Jun 1979

Issues In Federal, State, And Tribal Taxation Of Reservation Wealth: A Survey And Economic Critique, Russel Lawrence Barsh

Washington Law Review

This article will consider the most important Indian tax decisions, comparing the intended results of the decisions in the context of congressional Indian law with their probable economic consequences. Part II briefly reviews the main factors essential for proper economic evaluation of a tax. Part III critically surveys recent law of federal taxation of reservation wealth. Part IV similarly surveys and criticizes decisions regarding state taxation of reservation wealth. Part V offers alternate resolutions for state-Indian taxation disputes. In Part VI, the article proposes a framework for applying tax economics productively to the problem of meeting tribal revenue needs.

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Implied Limitation On The Jurisdiction Of Indian Tribes, Richard B. Collins Jun 1979

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

Washington Law Review

In 1978 the Supreme Court in Oliphant v. Suquamish Indian Tribe held that the retained sovereignty of Indian tribes over tribal reservations does not include the power to punish non-Indians who commit offenses against tribal law.' Based on a number of facts and premises, the Court concluded that it had been assumed from the beginning that the tribes lack this authority except where expressly recognized or conferred by treaty provision or act of Congress. The Court also relied on the fact that during the formative years few Indian tribes had the governmental structure necessary to comply with Anglo-American requirements of …

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Introduction To Indian Law Symposium. Indian Law And Policy: The Historian's Viewpoint, Rennard Strickland Jun 1979

Introduction To Indian Law Symposium. Indian Law And Policy: The Historian's Viewpoint, Rennard Strickland

Washington Law Review

One purpose of this special section is to bring new and fresh perspectives to the field of Indian law. The editors hope to create a broader understanding of the concerns of the Indian, the non-Indian community, the states, and the federal government. I hope to give you a look from yet another viewpoint, the historian's viewpoint. To historians there is the appearance of great circularity yet underlying continuity in the course of Indian law and policy. In this brief introduction I want to convey to you something of that historian's viewpoint in the hope that these new perspectives on Indian …

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Indians And Equal Protection, Ralph W. Johnson, E. Susan Crystal Jun 1979

Indians And Equal Protection, Ralph W. Johnson, E. Susan Crystal

Washington Law Review

This article analyzes the recent Indian equal protection cases in an attempt to formulate the equal protection doctrine as applied to Indians, to examine the theoretical foundation for that doctrine, and to indicate how that doctrine will likely be applied in situations not yet addressed by the courts.

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Tribal Preemption, Eric R. Biggs Jun 1979

Tribal Preemption, Eric R. Biggs

Washington Law Review

This comment analyzes the sources for the tribal preemption doctrine and the application of the doctrine. Because preemption necessarily involves a conflict between entities which seek to assert jurisdiction over the same subject matter, the general contours of jurisdiction over Indians must first be examined. The comment then discusses the federal preemption doctrine in order to explain more fully the aspects of tribal preemption which rest upon federal preemption. After an examination of how tribal preemption is applied in various settings, the comment will briefly look at the possibilities of partial tribal preemption. Finally, the comment concludes that a two-step …

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The Puyallup Indians And The Reservation Disestablishment Test, Richard M. Slagle Jun 1979

The Puyallup Indians And The Reservation Disestablishment Test, Richard M. Slagle

Washington Law Review

This comment considers whether the Puyallup Indian Reservation was disestablished when it was opened near the turn of the century for settlement by non-Indians. Although the Ninth Circuit Court of Appeals has held that "the Puyallup Indian Reservation continues to exist," subsequent dictum of the United States Supreme Court casts doubt upon the continuing validity of this holding. The question of the reservation's continued existence has also been raised in recent litigation. After reviewing the Puyallup Indian Reservation's history and analyzing it in the context of Supreme Court decisions concerning disestablishment, this comment concludes that the Puyallup Indian Reservation was …

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Jurisdiction To Zone Indian Reservations, Robert D. Wilson-Hoss Oct 1978

Jurisdiction To Zone Indian Reservations, Robert D. Wilson-Hoss

Washington Law Review

This comment will examine one of the most critical aspects of the civil jurisdiction issue—tribal jurisdiction to exercise land use planning and zoning control. With such jurisdiction, a tribe may regulate or prohibit the development of reservation lands, and thus exercise a measure of control over the future of its reservation. Without zoning jurisdiction, most tribes would be forced to submit to the judgments of non-Indians about the uses of reservation lands. An introduction to the history and patterns of land ownership on Indian reservations is important to an understanding of the clashes between Indian and non-Indian reservation residents. Equally …

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Washington's Public Law 280, Jurisdiction On Indian Reservations, Allan Baris Oct 1978

Washington's Public Law 280, Jurisdiction On Indian Reservations, Allan Baris

Washington Law Review

In April 1977 a Ninth Circuit panel in Yakima I 5 ruled that R.C.W. ch. 37.12 violates the equal protection clause of the fourteenth amendment. The Supreme Court, in accepting review, has instructed the parties to prepare briefs on both the equal protection challenge and the issue of Washington's compliance with PL-280.17 Several Washington tribes have contended that R.C.W. ch. 37.12 fails to comply with PL-280 because (1) Washington failed to amend its constitution in order to remove a disclaimer of jurisdiction on Indian lands 18 and (2) PL-280 does not permit the assumption of partial jurisdiction by a state. …

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Indian Law—Indian Sovereignty And Tribal Jurisdiction Over Non-Indian Offenders—Oliphant V. Schlie, 544 F. 2d 1007 (9th Cir. 1976), Kathleen A. Miller Oct 1977

Indian Law—Indian Sovereignty And Tribal Jurisdiction Over Non-Indian Offenders—Oliphant V. Schlie, 544 F. 2d 1007 (9th Cir. 1976), Kathleen A. Miller

Washington Law Review

Oliphant, the first attempt in recent case law to deal directly with the issue of tribal criminal jurisdiction over non-Indians, represents an acceptance of the theory that tribal sovereignty is diminished only to the extent that it is expressly limited by the federal government. The Court of Appeals for the Ninth Circuit held that, in the absence of any express limitations on tribal power, the original criminal jurisdiction of the tribe remains undiminished. After establishing this foundational principle, the court proceeded to analyze the alleged limitations on tribal jurisdiction. First, the court found no treaty purporting to limit the tribe's …

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Indian Treaty Analysis And Off-Reservation Fishing Rights: A Case Study, Richard A. Finnigan Nov 1975

Indian Treaty Analysis And Off-Reservation Fishing Rights: A Case Study, Richard A. Finnigan

Washington Law Review

In United States v. Washington, Federal District Court Judge Boldt held that treaties negotiated in the 1850's by Territorial Governor Isaac Stevens, on behalf of the federal government, reserved to the Indians of western Washington the right to fish off reservation for salmon and steelhead in their "usual and accustomed places." These treaties stated that the right is to be exercised "in common with" non-Indian fishermen. In a critical examination of precedent which clarified much of the prior uncertainty concerning Indian treaty analysis, Judge Boldt interpreted this treaty language to require that the Indians be given an opportunity to harvest …

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State Taxation Of Indians—Federal Preemption Of Taxation Against The Backdrop Of Indian Sovereignty—Mcclanahan V. Arizona State Tax Commission, 411 U.S. 164 (1973); Mescalero Apache Tribe V. Jones, 411 U.S. 145 (1973); Tonasket V. Washington, 411 U.S. 451 (1973), Clydia J. Cuykendall Nov 1973

State Taxation Of Indians—Federal Preemption Of Taxation Against The Backdrop Of Indian Sovereignty—Mcclanahan V. Arizona State Tax Commission, 411 U.S. 164 (1973); Mescalero Apache Tribe V. Jones, 411 U.S. 145 (1973); Tonasket V. Washington, 411 U.S. 451 (1973), Clydia J. Cuykendall

Washington Law Review

Over the years, the policy of the federal government toward American Indians has vacillated between attempts to assimilate them into American society on the one hand and efforts to preserve their independence and cultural identity on the other. Like a pendulum, this policy, as expressed in congressional legislation, has swung from efforts in 1887 to break up the reservations by transferring tribal lands to individual Indians in fee, to the halting in 1934 of further such alienation, and then back again since the 1950s to renewed efforts to end tribal existence. The legal theories and canons of construction generated by …

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The States Versus Indian Off-Reservation Fishing: A United States Supreme Court Error, Ralph W. Johnson Mar 1972

The States Versus Indian Off-Reservation Fishing: A United States Supreme Court Error, Ralph W. Johnson

Washington Law Review

Pacific Northwest Indian tribes signed treaties with the United States in the mid-1850's which guaranteed them the permanent right to fish at their usual and accustomed fishing sites off the reservations. The Indians believe these treaties mean that those states which did not exist in 1855 have no power to regulate Indian off-reservation fishing under any circumstances. State officials, on the other hand, have consistently argued that Indian off-reservation fishing is subject to the same state regulation as non-Indian fishing. The United States Supreme Court has basically accepted the states' position, holding that states can regulate off-reservation fishing when "necessary …

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Too Little Land, Too Many Heirs—The Indian Heirship Land Problem, Ethel J. Williams Jul 1971

Too Little Land, Too Many Heirs—The Indian Heirship Land Problem, Ethel J. Williams

Washington Law Review

The poverty of the American Indian has been intensified by a number of long-established federal land policies which have resulted in the progressive fractionation of land ownership so that much Indian land cannot be used effectively. This comment describes the origins and present dimensions of the Indian land heirship problem and the existing laws concerning the devolution of Indian land, and concludes with an analysis of the various statutory solutions which have been proposed to alleviate the problem.

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Indians—Criminal Procedure: Habeas Corpus As An Enforcement Procedure Under The Indian Civil Rights Act Of 1968, 25 U.S.C. §§ 1302-1303, Anon May 1971

Indians—Criminal Procedure: Habeas Corpus As An Enforcement Procedure Under The Indian Civil Rights Act Of 1968, 25 U.S.C. §§ 1302-1303, Anon

Washington Law Review

The Indian Civil Rights Act, Title II of the Civil Rights Act of 1968, extended portions of the Bill of Rights to individual Indians as against their tribal governments and provided federal habeas corpus relief to review alleged violations of these rights. The Indian Bill of Rights marked the culmination of a complete reversal in federal recognition of Indian constitutional rights. Until 1965 federal courts had recognized Indian tribes as quasi-sovereign entities. Individual Indians were guaranteed their constitutional rights in relations with federal and state governments, but not with their tribal governments. The only rights Indian governments recognized when dealing …

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Regulation Of Treaty Indian Fishing, Anon Mar 1968

Regulation Of Treaty Indian Fishing, Anon

Washington Law Review

On December 26, 1854, the Treaty of Medicine Creek was concluded between the United States and nine western Washington Indian tribes. The Indians ceded to the United States all rights in a large portion of their tribal lands, but reserved the "right of taking fish, at all usual and accustomed grounds and stations ... in common with all citizens of the Territory." Whatever the representatives of the United States or the Indian chiefs meant by this clause has been lost in antiquity. It is certain that they could not have foreseen the acrimony or the legal battles that it would …

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Regulation Of Treaty Indian Fishing, Anon Mar 1968

Regulation Of Treaty Indian Fishing, Anon

Washington Law Review

On December 26, 1854, the Treaty of Medicine Creek was concluded between the United States and nine western Washington Indian tribes. The Indians ceded to the United States all rights in a large portion of their tribal lands, but reserved the "right of taking fish, at all usual and accustomed grounds and stations ... in common with all citizens of the Territory." Whatever the representatives of the United States or the Indian chiefs meant by this clause has been lost in antiquity. It is certain that they could not have foreseen the acrimony or the legal battles that it would …

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