Indigenous, Indian, and Aboriginal Law Commons^™

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 …

Laplante V. Sun River Cattle Co., Inc., 90-Ap-19 (Blkft. Tr. Ct. App., March 7, 1991), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court determined that a prior grant of a Motion to Dismiss, in favor of Respondent, in a contract dispute concerning a recission of the sub-lease of a grazing permit to Sun River. The Court determined that LaPlante held the valid permit for grazing, granted by the BIA, and that Sun River was a mere sub-lessee. As a matter of law, the permittee, LaPlante, is responsible for carrying out the terms of the underlying grazing leases, no the Defendant, Sun River. No Evidence indicated that Sun River would be responsible for complying with …

Resource Law Notes Newsletter, No. 22, Mar. 1991, University Of Colorado Boulder. Natural Resources Law Center

Resource Law Notes: The Newsletter of the Natural Resources Law Center (1984-2002)

No abstract provided.

Implementing Winters Doctrine Indian Reserved Water Rights: Producing Indian Water & Economic Development Without Injuring Non-Indian Water Users?, Reid Peyton Chambers, John E. Echohawk, University Of Colorado Boulder. Natural Resources Law Center

Books, Reports, and Studies

18 p. ; 28 cm

Two Promises, Two Propositions: The Wheeler-Howard Act As A Reconciliation Of The Indian Law Civil War, Bradley B. Furber

Seattle University Law Review

This Article argues that current Supreme Court reasoning concerning the reserved powers of state governments undermines Supreme Court reasoning with respect to the retained powers of tribal governments. This Article also argues that tribal assertions of power over nonmembers constitute "state action" and, as such, should be subject to constitutional due process and equal protection constraints. Third, this Article will apply its thesis by discussing and critiquing a recent Supreme Court decision concerning tribal zoning authority over nonmembers. Fourth, the Article posits an explicit theory concerning tribal governmental powers that is consistent with the legislative history of the Wheeler-Howard Act …

The Reservation As Place: A South Dakota Essay, Frank Pommersheim

Faculty Publications

No abstract provided.

Tribal-State Relations: Hope For The Future?, Frank Pommersheim

Faculty Publications

No abstract provided.

Aboriginal Language Rights, Brian Slattery

Articles & Book Chapters

This paper considers several possible foundations for Indigenous language rights in the Constitution of Canada and argues for an approach that grounds these rights in inter-societal common law.

Volume 15 1990-1991

American Indian Law Review

No abstract provided.

Falling Through The Cracks After Duro V. Reina: A Close Look At A Jurisdictional Failure, Eric B. White

Seattle University Law Review

The decision in Duro v. Reina needlessly creates a jurisdictional gap over nonmember Indians committing minor crimes against other Indians on reservation land and leaves open the very real possibility that neither the federal nor the state governments will move in to fill that gap. A nonmember offender at the Washington festival would simply walk away. To understand how this jurisdictional gap over nonmember Indians needlessly came about and why neither the federal government nor the state governments will step in to exercise jurisdiction, this Note (1) looks at the complex web of law on criminal jurisdiction over Indians; (2) …

The Demise And Rise Of The Classical Paradigm In Canadian Federalism: Promoting Autonomy For The Provinces And The First Nations, Bruce Ryder

Articles & Book Chapters

The author explores the possibility of employing Canadian consitutional doctrine to develop a more flexible approach that would allow for greater provincial autonomy and First Nation self-government within the existing scheme of ss 91 and 92 jurisprudence. Canadian constitutional doctrine is first interpreted through the competing models of the classical and modem paradigms. The former emphasizes a sharp division of powers and has traditionally been used, the author argues, to invalidate legislation seen to interfere with the market economy. The modem paradigm, on the other hand, recognizes competing jurisdictions and has been used to uphold legislation focusing on morals. The …

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 …

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.

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 …

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.

Retreat From The Melting Pot: Cultural Pluralism And Public Policy, Douglas O. Linder

Faculty Works

No abstract provided.

Indian Reservations And The Preservation Of Tribal Culture: Beyond Wardship To Stewardship, John W. Ragsdale Jr

Faculty Works

No abstract provided.

Indian Law And The Miner's Canary: The Signs Of Poison Gas, Rennard Strickland

Cleveland State Law Review

In this fiftieth Cleveland-Marshall lecture I want us to look at some present day examples of Felix Cohen's contention that our treatment of Indians - Indian law itself - acts as a barometer, a miner's canary for society. I want to do this by first looking in detail at the Wisconsin Indian Fishing Rights question and then very briefly at several recent Supreme Court cases in the field of Indian Law particularly the Smith and Duro cases. I believe they do not bode well for any of us. In this brief time I have tried to cover too much but …

The Criminal Jurisdiction Of Tribal Courts Over Nonmember Indians, Nell Jessup Newton

Journal Articles

Throughout most of the history of federal Indian law, the United States Supreme Court has expressed extraordinary deference to Congress as the principal policymaker in Indian affairs, while often filling in gaps with imaginative characterizations of congressional intent or relying implicitly on its own power to create federal common law. Judicially articulated doctrines such as that of inherent tribal sovereignty have rightly been identified as providing the legal framework which has given conceptual stability to Indian law and influenced Congress to enact some of its more humane Indian legislation. But in more recent years the balance has switched; it is …

Customary Law In Namibia: What Should Be Done?, Lynn Berat, Robert J. Gordon

Vanderbilt Journal of Transnational Law

In this Article, the authors discuss Namibia's dual legal system, inherited from the previous South African regime, in light of the new government's goal of national reconciliation. After a brief introduction, the authors in Part II address customary law on a theoretical level. They point out that the customary law emerging in Namibia during the colonial era was not a reflection of a true communal tradition, but rather was a tool used to control resources and to redistribute power.

In Part III, the authors review the history of the colonial system in Namibia. The German colonial authorities divided Namibia into …

An Essay On Institutional Responsibility: The Indigenous Blacks And Micmac Programme At Dalhousie Law School, Richard F. Devlin Frsc, A. Wayne Mackay

Articles, Book Chapters, & Popular Press

Dalhousie Law School, like most other law schools, as a tribute to its graduates and as a manifestation of its traditions, adorns its walls with class photographs of years gone by. However, if one were to stop and scrutinize more carefully these pictures one might want to reconsider the tradition in a more circumspect light. Perhaps one might notice that until the nineteen sixties women were few and far between and that even now they still make up less than half of most graduating classes. More conspicuous still, is the general absence of First Nations peoples from the celebratory pageant. …

Indigenous Rights Norms In Contemporary International Law, S. James Anaya

Publications

No abstract provided.

In Memoriam: Prior Appropriation, 1848-1991, Charles F. Wilkinson

Publications

No abstract provided.

To Feel The Summer In The Spring: The Treaty Fishing Rights Of The Wisconsin Chippewa, Charles F. Wilkinson

Publications

In this Article, adapted from his Oliver Rundell Lecture delivered at the University of Wisconsin Law School in April 1990, Professor Charles Wilkinson explores the historical and contemporary conflict arising out of the Chippewa people's assertion of nineteenth century treaty fishing rights. A key to comprehending the Chippewa's position is a realization that they are governments whose sovereign rights predate the United States Constitution and are preserved in federal treaties and statutes. The Chippewa's survival as a people depends upon a recognition of their sovereign prerogatives, an understanding of their history, a respect for their dignity and a just application …

American Indians And The Right To Privacy: A Psycholegal Investigation Of The Unauthorized Publication Of Portraits Of American Indians, J. Wm. Moreland Esq.

American Indian Law Review

No abstract provided.

Responding To Dangers Posed By Hazardous Substances: An Overview Of Cercla's Liability And Cost Recovery Provisions As They Relate To Indian Tribes, Steven H. Berlant

American Indian Law Review

No abstract provided.

The Imaginary Connection Between The Great Law Of Peace And The United States Constitution: A Reply To Professor Schaaf, Erik H. Jensen

American Indian Law Review

No abstract provided.

Bankruptcy Court Jurisdiction Over Tribal Creditors: Lower Brule Construction Co. V. Sheesley's Plumbing & Heating Co., Sean R. Mcfarland

American Indian Law Review

No abstract provided.

Native American Free Exercise Rights In Sacred Land: Buried Once Again, Michael N. Ripani

American Indian Law Review

No abstract provided.

Florida's Seminole Indian Land Claims Agreement: Vehicle For An Innovative Water Rights Compact, Barbara S. Monahan

American Indian Law Review

No abstract provided.